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EU - Motion to Restart the Software Patents Process
Monday, January 10 2005 @ 10:35 AM EST

Both Heise and ZDNET have the news. 61 EU members of parliament from 13 countries, including Germany, Italy, the Netherlands, Poland and Sweden, led by the Polish ex-prime minister Jerzy Buzek and including a former European Commissioner and three vice-presidents of the European Parliament, are asking that the entire legislative process that led to the software patents directive be *begun from scratch*.

They have filed a refile motion, calling on the EU Commission to refer its proposed directive back the EU Parliament, which is where the process begins.

If that happens, I'm told it would essentially mean no patent directive would be back on the table as a finalized directive for 3 or 4 years. Or, maybe it could go away in a way that saves face all around. Lobbyists may want software patents, but it is now clear that many Europeans decidedly do not. ZDNET says that the website where you can thank Poland for blocking a rubberstamping of the directive received 25,000 thank you's in 9 days and continues to climb. The site says that it was inspired by a comment one of you left on Groklaw. I didn't know that.

It could also mean that the lobbyists will try something else. They are unlikely to just quit.

The basis for the request is that, due to the elections in June, most of the current representatives never voted on this issue. Moreover, the "very nature" of software patents have changed "substantially", the members filing the motion say. Thus patent-related risks, for example, were increasingly having an effect on decisions made by public administrations and private organizations on whether "in view of infrastructures and their possibilities to purchase software and services from small and medium-sized companies." This appears to be referring to Munich.

They are invoking Article 55 of the Rules of Procedure of the European Parliament which says that members of parliament are allowed to reconsider a proposal by the EU Commission, such as a draft directive, when "the nature of the problem with which the proposal is concerned substantially changes; elections to Parliament have taken place since it adopted its position". The motion has been given to the Tabling Office of the European Parliament (EP), through which all documents must passed before being discussed by MEPs in the EP. You can read it here [PDF].

Here is the press release from, which was started with the support of Red Hat, MySQL, and 1 & 1. So don't ever let anyone tell you Red Hat isn't really part of the community or doesn't know what free is, blah blah.



61 MEPs from 13 different countries introduce motion -- Restart of legislative process requested on grounds of new elections, EU extension, and changed circumstances -- Procedural step would also represent "a face-saving exit strategy for the EU Council"

Brussels (10 January 2005). The EU's legislative process on a software patent directive continues to be eventful. Just before Christmas, the Polish government surprisingly delayed a decision in the EU Council. Strong support is now building up in the European Parliament for an initiative to restart the entire legislative process. 61 MEPs (Members of the European Parliament), from 13 different countries and 4 political groups, have introduced a motion to ask the EU Commission for resubmitting a legislative proposal, which means to go back to square one. The group of signatories is led by former Polish prime minister Jerzy Buzek, and includes other high-profile politicians, among them three vice presidents of the European Parliament, multiple members of group and committee leaderships, and a former EU Commissioner. The complete list was published today on, a pan-European campaign Website.

The EU Commission had already highlighted the possibility of parliament restarting this legislative process in a statement published on its Website last summer. In this scenario, the EU Parliament would have a new first reading, and the EU Council would again be free to negotiate a "Common Position" on the directive. The EU Council could still change its position in the ongoing process because it has not formally adopted it yet, but countries are now informally bound to a political agreement of 18 May 2004.

"A majority of today's MEPs didn't get to participate in the first reading in 2003, and the governments of the new member states were barely finding their seats in the Council last May", said Florian Mueller, manager of the campaign. "This issue is controversial, complex, and so very critical to Europe's future. A total restart is also a face-saving exit strategy for the Council, which is caught between a rock and a hard place because it would either have to depart from an unwritten diplomatic code and renegotiate its position now, or it would have to decide against all democratic principles."

Mueller pointed out that his campaign also strives for a maximum of legal certainty but that he is "absolutely unaware of any problems for legitimate patent holders in the current situation", so he believes Europe should assign a higher priority to finding the right decision than to rushing this process. "If there is any category of patents that are difficult to enforce in Europe right now, then we're talking about those shady software patents that nobody says he wants and that some say don't even exist." The European Patent Convention explicity excludes patents on computer programs, but an estimated number of more than 30,000 such patents have been granted in Europe nonetheless.

Internet Addresses of Relevant Documents

Motion text:

Lists of signatories (by country and by political group):

Commented version of EU Commission's statement on restart possibility:

Procedural Background Information

Under Rule 55 of its Rules of Procedure, the European Parliament may request a restart of a legislative process under certain circumstances. That request can come from the committee in charge (first paragraph of the rule), or alternatively result from a plenary vote (fourth paragraph). The European Parliament is looking at both procedural options here.

The motion bases the request for a restart upon two facts:

- New European elections have taken place since the original first reading in the European Parliament in 2003. Due to the elections in June and the EU extension in May of 2004, a majority of today's MEPs did not get to participate in the first reading.

- The motion also stresses that "there have been substantial changes in the nature of the subject to which the proposed directive relates". Either one of the two reasons would be sufficient on its own to invoke Rule 55.

Restarting a legislative process after elections routinely happens in various parliaments, such as the German Bundestag. The technical term for the principle is "discontinuity". In the current legislative term of the European Parliament, the "directive on the patentability of computer-implemented inventions" would be the first, and quite likely the only, case in which the principle of discontinuity is applied.

On the subject of changed circumstances, the motion particularly cites patent-related implications to IT infrastructure decisions by public administrations. Last summer, the city of Munich had temporarily suspended its Linux migration project over patent infringement fears. The project was resumed, but the city administration was advised by a local law firm to demand that its IT vendors and service-providers hold the city harmless of patent litigation costs and indemnities. To the dismay of the city administration, this would preclude small and medium-sized businesses from successfully bidding for contracts. Furthermore, on November 18th, Microsoft CEO Steve Ballmer had warned Asian governments that they would face patent litigation if using the Linux operating system instead of Microsoft's Windows product.

About the Campaign

The campaign was launched on October 20th in initially 12 languages and is supported by three IT companies (1&1, Red Hat, and MySQL AB). More information on the campaign is available on the campaign Web site.

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