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EU approves software patent changes

Officials vote for controversial changes to a draft directive, meaning that Europe is now likely to see widespread patenting of software programs.

The European Council on Tuesday approved controversial changes to the European Union's Software Patents Directive that will pave the way for widespread patenting of software in Europe.

According to a spokesman at the United Kingdom's Department of Trade and Industry, which backed the changes, the vote removes many of the changes introduced last year by the European Parliament that would have limited the degree to which software programs could be patented.

"The text that was approved is very close to the original (European) Commission proposal," said a DTI spokesman, though he said the DTI had not yet seen the final amendments.

The directive will now be sent back to the European Parliament for another vote there in the autumn as the different bodies of the EU engage in a game of legislative ping-pong. While observers expect vociferous lobbying from open-source and developer groups, reversing the Council's vote will be difficult, according to James Heald of the Foundation for a Free Information Infrastructure (FFII), a not-for-profit organization that promotes the rights of technology entrepreneurs and developers.

"The catch is that if the Parliament still doesn't like software patents, it has to have a majority of all MEPs (ministers of the European Parliament) to put its amendments, which means that in practice they need a 2-to-1 or 3-to-1 majority in the chamber," Heald said.

If the Parliament is successful in that vote, the directive will go back to the Council for a second reading. If the Council still disagrees, it will go to a "sudden death" reconciliation committee, which will have six weeks to settle the matter.

The Irish Presidency had hoped a new draft of the Software Patents Directive would be approved without discussion on Monday, but an objection from Luxembourg gave the issue an airing on Tuesday. That seemed to have had little, if any, effect on the outcome.

The directive was developed to harmonize Europe's patent system based on best practices, but critics--including software developers, economists, computer scientists and small businesses--have argued that the version developed by the European Parliament's judicial affairs committee was fatally flawed.

Objectors say the draft's wording was vague enough to legitimize software patents, which would lead to patent warfare dominated by large corporations, already the situation in the U.S. software industry. This argument was persuasive enough to convince members of the European Parliament to introduce a number of important amendments before approving the directive late last year.

However, the European Council, which represents all the governments of the European Union, gave the amended text of the proposal to an independent body of experts for redrafting. But developers--many of them from the open-source community--say the new draft dismisses the amendments made by the members of the European Parliament last year and in its present form may actually cause even more damage to the European software industry than the original.

In a letter to open-source software Web site LWN, the founder of MandrakeSoft Linux, Gael Duval, said the redrafted proposal was written by people with a common interest in allowing software to be patented.

"They are mostly representatives from the national patent offices, backed by the heads of the legal departments of some big industrial companies, all of whom have a common interest. More patents mean more power for them, irrespective of the harm that will be done to the economy at large, and even to their own companies," Duval said.

The FFII's Heald said the vote was originally scheduled to be pushed through on Monday morning as part of a block of proposals, but after one country's representatives objected, the directive was to be discussed as a separate issue Tuesday afternoon.

Tom Watson is one U.K. minister who wrote to the secretary of state for trade and industry, Patricia Hewitt, to express his objections. In his letter, Watson argued that if the proposal is approved in its current state, it will represent a "failure in the decision-making process for Europe" and could bring the new European laws on intellectual property into disrepute.

"Whatever the arguments in favor of software patents are, this would be a serious misuse of power on such a widely contentious issue, and I would prefer that a minister from the United Kingdom took no part in promoting it," Watson said.

Munir Kotadia of ZDNet UK reported from London.