On 16 November 2004, Poland withdrew its support for the EU draft Directive on the Patentability of Computer –Implemented Inventions. The Directive seeks to codify and harmonise different EU national laws for computer programs including the treatment of software patents. The Polish cabinet decided that it would not support the directive as it is too vague and, in its present form, does not rule out the possibility of patenting software or business methods.
The original text proposed by the Commission was approved by Parliament on 24 September 2003 after a series of amendments which placed significant limits on the patentability of software. Parliament’s amendments were a major defeat for the directive’s original proponents. Rather than being a confirmation of the global practice of granting software patents, the Parliament’s version placed substantial limits on patentability. Under the co-decision procedure, the Council on 18 May 2004 submitted a compromise version of the proposal which overturned most of Parliament’s amendments.
The compromise version of Directive was scheduled to be formally adopted without debate before being sent back to the EU Parliament for a second reading. However, the recent revision on the number of votes each state can wield gave Poland enough influence to tip the balance of the Council in favour of the antisoftware patent camp. Without Poland’s support, the directive’s approval falls short of a majority. Nevertheless, the Council’s Committee of Permanent Representatives in its December meeting determined that the Council’s version of the directive would be scheduled for formal adoption without debate. However due to statements of reservation by Belgium, France, Netherlands, Hungary, Latvia and Poland being attached to the Common Position; as well as the opposition from Poland, the Council’s vote has been postponed indefinitely. It is uncertain when the issue will return to the agenda.
The postponement of the adoption process means that the highly controversial software patents directive has an uncertain future. The wording of the European Patent Convention, suggests that computer-implemented inventions are excluded from patentability within Europe and national laws in EU member countries are far from clear. The task of clarifying what can and cannot be patented is left to the courts. It is generally agreed that clarification and harmonisation of this area would be beneficial. However, now that the political process has stalled, the current uncertain position will remain until the draft directive is renegotiated to produce a version more acceptable to all sides.
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