Re: [Fsfe-uk] Software Patents

[James Heald]

Alex Hudson wrote:

> Hi Simon,
>
> On Sat, 2004-12-18 at 05:20 +0000, Simon Waters wrote:
>
> > | - If the Directive is sent back, rather than restarted, it will be in
> > | the 2nd reading. *However*, new amendments may still be tabled, so
> > there
> > | is still hope!
> >
> > Silly question - but is there a way directives can simply fail/be
> > defeated?
>
>
> http://www.softwarepatents.co.uk/current/
>
> (The main graph is the 'longest route'; at any time we could go down a
> dotted line instead)
>
> Once it gets to the 2nd Parliament reading (assuming they don't restart
> the process), any institution from that point onward can vote to accept,
> amend or reject the directive. 
>
> To be honest, we probably don't want the directive to fail. As bad as
> the EU process is, we do at least have representatives in the process.
> If they decide to bin it and go for an intra-governmental trade
> negotiation (or similar), it will just happen and we will have zero
> input.

The calculation I think of the whole of FFII, and also Florian Mueller, 
is that the present Council text is much worse than no directive at all.

As we understand it, the Council text would roll out the current EPO 
behaviour across Europe; and would also tend to make decisions in one 
country much more indicative across the whole EU, making enforecement 
decisions much more powerful.

Even in the UK at the moment, the scope of patentable subject matter is 
to some extent limited, as Steve Probert has been describing on the 
uk-parl list, as a result of the "Gale's Application" case.

Those limitations are not written into the Directive, and the 
presumption is that they would soon be swept away by an early decision 
of the European Court of Justice.

So on balance, we would see the present Council text as significantly 
worse than no text at all; and for example the German Green party has 
already announced that if the present text goes to second reading, its 
preferred option would be to kill the text outright, rather than even 
try to amend it.


Going the inter-governmental route presumably means amending the 
European Patent Convention.  This was tried in 2000, but failed due to a 
political backlash in Germany and France.   It takes (I think) 75% of 
countries to vote in favour, and it is not clear that this would be 
possible to achieve.

> > I read several descriptions of the process, and it seemed the worst
> > that ever happens is it go back for some sort of negoiation process
> > between parliament and council, or is this the "diplomatic" way of
> > burying bad legislation?
>
>
> I don't know how often they fail, but it's not often - I think it takes
> an absolute majority vote of whichever institution it is to take a
> 'dotted line' shortcut. Conciliation is supposed to be a good attempt at
> finding a text which is acceptable to both parties, and generally works
> - conciliated text is very rarely dropped. So, in fact, instead of being
> buried, the directive would be even more likely to succeed.

The parliament gets an opportunity to vote down the text outright, at 
each reading.

The commission also has the right to take its ball away, if it comes to 
that, whenever it likes.


> Cheers,
>
> Alex.
>
>
>
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