Rapporteur Michel Rocard (French socialist, PSE) is preparing the European Parliament for the second reading of the controversial directive on software patents. On 21 April his working document was discussed in the EuroParl Committee on Legal Affairs (JURI) and on 29 April he filed a long list of amendments on the document produced by the Council of Ministers of Competitiveness. Rocard clearly wants to exclude any patents on pure software and business methods and is reinstating almost all of the amendments adopted by the European Parliament in the first reading. In spite of the massive majority in the EP during the first reading against software patents and ignoring the protest from 5 member states, the European Commission and the Council of Ministers produced a hotly contested 'common position' in March 2005 that didn't specifically exclude software from patentability.

The European Competitiveness Council (the EU ministers of Economical Affairs/Industry) has adopted the controversial common position on software patents on 7 March 2005 as A-item. This classification means a proposal is adopted without further debate. Spain voted against. Austria, Belgium and Italy abstained, while Denmark, Cyprus, Latvia, Hungary, the Netherlands and Poland added a written statement to the Council minutes. Earlier, the European Commission had refused a request from the presidents of all the major political parties in the European Parliament to withdraw the proposal and start all over again.

In a first response, the EP committee on legal affairs (JURI) demanded to see full documentation (including minutes, declarations and transcripts of the recordings) of what happened in the Council. JURI decided to call for this record because they doubt if there actually was a majority of member states in favour of the Common Position.

The Swedish jurist Sandra Paulsson has published a 27 page report on the differences in approach between the US and the EU approach to software patents. She has written the briefing for the European Parliament as trainee at the Policy Department for Economic and Science (STOA).

Paulsson finds the differences between the patent systems in the US and Europe a lot smaller than most people think, and warns that the effects will probably be similar. "One of the aims with the directive is to "achieve the right balance between making patents available where appropriate in order to reward and encourage innovation, while avoiding stifling competition and open source development." Therefore it is important to see what the proposed directive would allow in practise. My findings are that neither the original proposal, the amendments by the European Parliament, nor the Council's changes actually fulfil the aim of making the balance so that innovations will be both promoted and protected. My conclusion would be that the directive would clarify for patent offices in Europe to adopt the same broad standard that exist in America today, the same standard that European stakeholders are so afraid of and claim to try to avoid."

On the cold Thursday morning of 17 February, 250-300 people gathered on the square between the European Commission and the Council of the European Union in Brussels, Belgium for a demonstration against patents on software ideas. The demonstration was aimed to support the request made that same day from the European Parliament Conference of Presidents, i.e. the heads of the political groups, to the Commission for a restart of the procedure. Many turned up dressed as old-style prisoners, wearing badly fitting black and white striped clothes and signs such as "I am a software writer".

Bananas were handed out to everyone and were waved in the air as the group marched to hand letters (and bananas) to the Luxembourg presidency of the EU and the European Commission DG Internal Market. The bananas were a pun on a remark made early in January by a representative of the Luxembourg Presidency in a meeting with the Foundation for a Free Information Infrastructure (FFII): "This is not a Banana Republic". He meant the directive as adopted in May 2004 had to be adopted by a Council and procedures wouldn't be changed because of later differences in opinion in national parliaments. But according to the protesters, the two attempts to schedule the proposal as A-item at the inappropriate Council meetings of the Ministers of Agriculture and Fishery, even after it had become clear that there was no majority for the proposal anymore, surely indicated quite the opposite.

On 2 February 2005 the legal affairs committee of the European Parliament (JURI) voted with an overwhelming majority (19-2) to get rid of the current software patent proposal and start all over again with a new proposal. Only 1 MEP voted against the initiative, and 1 MEP was absent.

The former French prime minister Michel Rocard gave an impressive speech in the JURI committee. With all respect for the new Commissioner for the internal market, Charlie McCreevy, he said he and other MEPs felt "mustard was coming through their noses". A first 'inelegance' Rocard noted was the fact that all the EP amendments in the first reading of the proposal had been ignored by Commission and Council. Secondly, the ministers of Germany and The Netherlands had ignored their own parliaments. Thirdly Rocard opposed the repeated attempts to adopt the proposal in the wrong forum of ministers, twice even at a Fishery Council. Rocard concluded his speech by explaining once more why the word 'technical' in the Council proposal couldn't help anybody distinguish between what is patentable and what is not.

Poland did it again. For the second time they blocked the attempt to silently adopt EU Council's agreement on software patents, this time in the Fisheries Council of 24 January 2005. The government of Poland had already requested the item to be deleted from the agenda of the Agriculture and Fisheries Council on 21 December 2004.

On the Friday preceding the Fishery minister's meeting the Polish European Committee of the Council of Ministers, presumedly acting on the initiative of the country's Ministry for Science and Technology, requested not to include the Directive on the Patentability of computer-implemented inventions on the agenda of that Council meeting, because "the work on the final position of Poland on the issue has not yet been completed". A statement published on the Polish Office of the Committee for European

61 Members of the European Parliament from 13 countries have signed a motion for a resolution calling for a new first reading of the software patent directive. According to the motion, the situation has changed substantially (with risks for public administration) and the European Parliament itself has changed, two formal reasons to be able to call for a renewal of the procedure.

The motion was initiated Jerzy Buzek (Christian Democrats, former prime minister of Poland) and Adam Gierek (Socialists, Poland). Amongst the signatories are many Polish MEPs, but also veteran MEPs that welcome the initiative as a way out of the political deadlock between Council and Parliament.

The motion is a great success for the anti software patent movement, especially the Foundation for a Free Information Infrastructure (FFII). Their relentless lobbying last year against the patentability of pure software has caused many MEPs to remain strongly opposed to Council attempts to introduce a very broad and vague patentability of computer-implemented inventions.

The EU Court of First Instance has entirely dismissed Microsoft's objections to a set of sanctions against the software giant by the EU Commission. The Court rules that the Commission's decision does not "cause serious and irreparable damage" to Microsoft. Microsoft requested an interim measure from the Court that would hold up the Commission's decision until the case has been reviewed by a higher Court in a lengthy procedure. Now that the Court of First Instance has rejected Microsoft's request the software giant will have to implement the Commission's decision in short time.

In March 2004 Microsoft got a record fine of 497 million euro after a five-year investigation by the Competition Commissioner into Microsoft's business practice. The Commission ordered Microsoft to offer a version of