The Dutch EU presidency has failed to push through the controversial Council proposal on software patents. Thanks to the last-minute arrival of the Polish secretary of state of Science and Information Technology at the EU Council of Agriculture and Fishery on 20 December, the proposal could not be adopted without voting. Mr Wlodzimierz Marcinski formally demanded more time for Poland to deliver a constructive unilateral declaration.

The delay opens new possibilities for the national parliaments, especially in Poland, Germany and the Netherlands, to re-negotiate the points of view of their Ministers of Economical Affairs. Many ministers currently play a word-game with their members of parliament, saying they agree the directive should not allow for patents on pure software and business

Contrary to expectations which already saw the majority of the Council of the European Union shifting to opposing software patents, the Council seems to be taking preparations to adopt its much contested draft Common Position, dating from 26 May 2004, during one of its meetings in the week before Christmas. The current Dutch Presidency of the EU seems to be so eager to have the document passed during its term that the paper is likely to be adopted either during the Environment Council on 20 December or the Agriculture and Fisheries Council on 21-22 December, just because there will be no more other Council meetings before the end of the year.

The adoption of a Common Position does however not mean that, as a recent Slashdot article says, the Council will manage to 'circumvent' the European Parliament. In the co-decision procedure, the adoption of a Common Position just sends out a strong signal to the Parliament that the Council will remain stubborn.

The EU's Court of First Instance will decide between 18 and 20 December whether to suspend the Commission's sanctions against Microsoft. 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 also ordered Microsoft to offer a version of Windows without a bundled media player and to share more technical information with server rivals. Microsoft paid the fine but the cash is being kept in an escrow account until Microsoft's appeal has been settled.

According to the Commission's March 2004 ruling Microsoft's illegal conduct has enabled it to acquire a dominant position in the market for work group server operating systems and has significantly weakened competition on the media player market. The dominant position has grave consequences for consumers: "The ongoing abuses act as a brake on innovation and harm the competitive process and consumers, who ultimately end up with less choice and facing higher prices".

On 9 and 10 November 2004, the Foundation for a Free Information Infrastructure (FFII) and MERIT, sponsored by OSI, CEA-PME and the Greens/EFA, organised a conference in Brussels on the topic of 'Regulating Knowledge: Costs, Risks, and Models of Innovation'. Its main theme was the economic consequences of software patents, focussing on economic dynamics, insurance risks, standardisation failures and institutional interests. However, it also touched upon the democratic legitimacy of current policy making, as well as legal analysis of the current directive proposal on the patentability of 'computer-implemented inventions'.

Economic experts from the US such as Brian Kahin and Jim Bessen sketched the economic background of the debate: why do we grant patents, do these assumptions still hold true in an information economy, and how are patents

The Polish government has announced today it can not support the proposal from the EU Council for a Software Patents directive, since it is too vague, and leaves too much room for patents on pure software and business methods. This means there is no majority in the Council anymore to formally ratify the agreement that was reached on 18 May 2004. On 1 November 2004 the voting-procedure in the EU Council was modified to allow the new Member States to have equal amounts of votes. With the Polish 'NO', the Council will have to re-negotiate the draft directive once more within the Council, before being able to present it to the European Parliament for a second reading.

The text was already very problematic, due to growing political differences between government representatives of member states and

According to a report in the EU eGovernment News, the formal approval of the draft Directive on the patentability of computer-implemented inventions by the EU Competitiveness Council has been postponed due to translation delays.

"The political agreement between Member States over the draft Directive on the patentability of computer-implemented inventions was expected to be approved during the EU's Competitiveness Council meeting held on 24/09/2004, before being sent back to the European Parliament for a second reading. However, the item was removed from the Council’s agenda due to delays in translation."

The Council text was agreed upon by the Member States on 18 May 2004. In many national parliaments a heated debate followed, asking the respective ministers to explain their approval of patents on software. The Dutch minister of Economical Affairs was even forced by the Dutch Parliament to withdraw his approval. In that light, the 'translation delays' give the Ministers welcome time to negotiate their strong political differences.

The Dutch EU presidency has commissioned a report with very critical remarks about software patents. "The mild regime of IP protection in the past has led to a very innovative and competitive software industry with low entry barriers. A software patent, which serves to protect invention of a non-technical nature, could kill the high innovation rate.(...) Only very few European companies have prepared themselves for the consequences of a software patent regime. It raises the question how the introduction of the European software patent interacts with a European strategy based on the widespread use of ICT's." (page 50)

As commissioner of this report, the Dutch Minister of Economical Affairs, Brinkhorst, makes a remarkable shift in position. In the European Council of ministers of economical affairs on 18 May, he agreed with the Council's position in endorsing software patents. The Dutch parliament than, on 1 July 2004, adopted a motion urging him to change his vote into an abstention. He didn't respond in a manner that satisfied the parliament, and new questions were raised on 31 August.

The Center for Strategic and International Studies (CSIS) in Washington DC put together a rather large chart providing information on the number and type of Open Source (OS) software policies and legislation considered by national, regional or local governments around the world. It looks at whether the policy or legislation mandated the use of OS, expressed a preference for OS software, encouraged its use or commissioned research into OS software.

Open Source Chart (last updated 08.09.2004)
http://www.csis.org/tech/OpenSource/0408_ospolicies.pdf