The controversial EU software patent directive has been thrown into confusion with a motion signed by 61 MEPs recommending it be thrown out and the legislative process begun again.

The directive is currently awaiting a vote in the EU Council after a dramatic intervention by Poland at its final meeting of 2004 caused its rubber-stamping to be delayed.

Sixty-one MEPs from 13 countries and four political groups have introduced a motion to ask the European Commission, to resubmit the "Patentability of Computer-implemented Inventions" directive. The entire Parliament must vote on the request. If a majority of MEPs approve the motion, the Commission will be forced to restart the process for the directive.

Should the motion be effective, it would have to happen quickly, said Florian Mueller, manager of the NoSoftwarePatents (NSP) campaign. "Realistically, it would take place during the next major plenary session of the Parliament beginning the week of 21 February," he said.

NSP contends that copyright laws are enough to protect business innovations and would like patents for software to be outlawed in Europe. The group is supported by US-based Linux operating system company Red Hat, Swedish open-source database software company MySQL and German software and Internet services provider 1&1 Internet.

The existing directive is currently awaiting a final vote by the Council of Ministers, before the proposed legislation goes back to the European Parliament for a second reading. The Council and the Parliament have been wrangling over differing versions of the directive since it was submitted by the Commission in February 2002.

Politicians are at odds over an outline agreement of the directive approved by the Council of Ministers last May. That agreement reversed amendments to the directive, added by Parliament, that bar the patenting of software.

In December, Polish deputy minister for Science and IT Wlodzimierz Marcinski formally requested a delay on the final Council vote, saying that his government needed more time to draw up an appropriate statement on the legislation. Representatives from the Council had contended that the final vote was being held up due to the work required for putting the text into all of the various languages of the EU member states.

The Commission declined comment on the motion to restart the legislative process or to specify when the Council vote is now expected to take place.

While the motion has a real chance of derailing the progress of the Council of Ministers' version of the "Patentability of Computer-implemented Inventions" directive, Leo Baumann of the European IT and communications industry association (EICTA), said he doesn't expect the group will be successful in its request. "It's possible to do that but you need a majority of the European Parliament and the approval of the conference of presidents (leaders of the political groups). I don't expect it to happen," Baumann said.

The EICTA believes that some software needs patent protection. Its members include software firms like Microsoft, SAP and Sun, hardware makers like HP and Intel and telecom companies like Ericsson and Nokia.

The EICTA has warned that restarting the legislative process would only succeed in continuing the current uncertainty over patenting computer-implemented inventions, possibly for years. Thus far, the EU has been unable to bring into line the myriad interpretations given to patent law by different European national courts.

Recently, the EU has increased its ranks from 15 countries to 25, bringing major changes to the political landscape, which in itself warrants a new approach to the directive, argues Florian Mueller. "Of the 732 MEPs serving, more than 400 are new. There is now a lot more sensitivity to the concerns over patenting software," he said.

Simon Taylor, in Brussels, contributed to this report.