European Union governments have rubber-stamped rules governing the patentability of inventions implemented by computers, known as the software patents directive, standing by an agreement they reached in May.
A meeting of ambassadors to the EU yesterday evening agreed to formally endorse a deal reached by member state governments in May of this year. The decision will come as a blow to opponents of the new legislation, among them the open source software community, who argue that the rules would allow the patenting of software. For approval, the legislation must still be referred back to the European Parliament (EP), which includes many opponents of the legislation.
If members of the European Parliament (MEPs) reject the EU governments' agreement, the two sides have to find a compromise, which may end up being closer to the open source software lobby's position.
A spokesman for the Dutch Presidency of the EU, which is chairing meetings until the end of the year, said: "Everyone realised that the legislation is not going to work if we change position now," adding, "It's a complex agreement and different positions have been taken into account. It's in no way an extreme agreement."
Not everyone is pleased with the legislation. "It's a piece of junk," said Hartmut Pilch, president of the Foundation for Free Information Infrastructure. "What they have passed is something nobody stands behind."
A slim majority of the EU's 25 member states approved the May agreement and several countries only supported a compromise drawn up by the-then Irish Presidency because they believed that it excluded pure software from being patented.
Since then, changes in voting rules meant that countries who didn't support the proposal, such as Poland, now had the power to derail the process. Poland indicated it could not support the proposal, saying it was not happy with the wording of the text and problems its implementation might cause. If Poland had blocked the proposal from being adopted, it would have forced the EU to draft new legislation, setting the whole process back at least a year.
But rather than taking such a definitive step, Poland merely issued a declaration saying that it had some concerns with the compromise. The declaration fell short of saying that Warsaw would block the proposal at a later date, according to a Dutch Presidency spokesman. Poland is understood to have come under severe political pressure not to undermine the proposal at this stage.
"Whatever concerns Poland has about the language, they support patenting for computer-implemented inventions, not patenting of software. By letting it go to the second stage they can make sure that their concerns are addressed," said Mark MacGann, director general of the European Industry Association for Information Technology, Consumer Electronics.
Hungary, Latvia and the Netherlands also made declarations with the Hague's ambassador noting that the Dutch Parliament had concerns about the legislation.
The directive will be sent to the Parliament for its second reading under the EU's codecision process, which gives it equal powers to the Council of Ministers.
Last year, MEPs took a strongly diverging line to the Council and drastically restricted the scope of inventions that could be patented to prevent the rules from covering software. These changes were thrown out by the Council in its current proposal. During this "second reading" process, MEPs will now need to rally a bigger majority than before if they wish to make changes.
Meanwhile, support for the open source community's arguments against the legislation grows with calls coming from all German political parties - including the normally pro-business center-right and Liberals - for the rules to exclude software patents. The rules could have an even rougher ride from MEPs next year when they are debated in Parliament.
"This is a very positive step, but a lot more work needs to be done," MacGann said.