Hopes of fresh start on EU software patent law set back

Attempts by opponents of software patents to force the EU to restart the legal process from scratch have been dashed by the Commission.

Opponents of controversial legislation which would allow software to be patented across the European Union (E.U.) have received a double blow this week.

On Monday the European Commission, the E.U.'s executive body, declined to restart the decision-making process on the legislation. It refused to resubmit a proposal for a directive on computer-implemented inventions, which, opponents claim, would allow patents on software.

The Council of Ministers, which represents national governments, also announced it was planning to push ahead with a fiercely contested version of the directive by formally adopting an agreement reached in May last year.

Campaigners against the directive have played a major part in efforts to restart the decision-making process from scratch to give members of the European Parliament (MEPs) a chance to try and prevent patent protection being extended to software.

Florian Müller [CQ] of the NoSoftwarePatents.com campaign said that the Commission had decided to "negate democracy" by ignoring MEPs' request to restart the legal process.

European Commission President José Manuel Barroso [CQ] sent a letter to the President of the European Parliament, Josep Borrell, [CQ] on Monday, saying that the Commission "did not intend to refer a new proposal to the Parliament and the Council (of ministers)" as it had supported the agreement reached by ministers in May 2004.

The letter added that the Commission expected the Council to formalize the May agreement as soon as possible so that the next stage of the decision-making procedure could continue.

This piece of legislation is being decided according to the E.U. co-decision procedure which gives MEPs, who are directly elected, and their national governments joint decision-making powers.

The Commission added that it would "review all arguments and positions expressed and respond accordingly."

However, the Commission's decision is risky because Barroso already faces opposition to his pro-free market policies from the Parliament's second biggest group, the Socialists, plus the Greens and the Communist-dominated European United Left-Nordic Green Alliance.

The decision to ask Barroso to submit a new proposal was backed unanimously by all political groups in the Parliament following an overwhelming vote in favor of the request in the Parliament's legal affairs committee.

The Socialists may decide to escalate this dispute into a wider political fight.

Maria Berger [CQ], an Austrian Socialist MEP, and member of the legal affairs committee, said that the Commission's decision would not lead to a "good solution".

French Green MEP Alain Lipietz [CQ] warned two weeks ago that if the Commission ignored the Parliament's request it would be an "insult" to the assembly. He said that the Parliament would then reject the Council's version of the legislation as part of the final or conciliation stage of the codecision procedure.

The Commission's move to ignore the Parliament throws the whole issue into legal uncertainty because it is not clear whether MEPs can block the decision-making procedure by refusing to recognize the Council's agreement.

Luxembourg, which is currently chairing European Union meetings, has said it wants to try to get the May deal formally adopted at the March 7 meeting of the Competitiveness Council.

This would normally mean that the second reading stage of the process could start, giving MEPs and the Council another chance to come to an agreement about the scope of the directive.

However, this could be blocked if the Parliament President refuses to recognize the Council's position.

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