The European Council has approved a controversial draft directive which will open the way for the patenting of software in Europe if it is approved by the European Parliament later this year.
The directive passed by a narrow margin, with 27 of the 37 votes needed to block the proposal being exercised. Critics claimed the draft of "Patentability of computer-implemented inventions", known as the software patents directive, contained wording which would allow large companies to build up software patent arsenals, and so lock out smaller companies.
Software patents are already common in the US and have recently been the source of several large-profile multi-million-dollar lawsuits.
The vote saw the Council – whose members are not MEPs but politicians from EU member states' national governments – approve the draft with Belgium, Italy and Austria abstaining and Spain voting against.
The vote was effectively decided by the support of Germany, which had earlier opposed the text, but was apparently persuaded by a minor compromise in the text's wording, according to observers.
"The agreed text contains provisions, in accordance with the practice developed within the European Patent Organisation, for patentability of computer-implemented inventions stipulating, inter alia, that a computer program as such can not constitute a patentable invention," the Council said.
The text approved by the Council is nearly identical to a version debated by the European Parliament last year, which provoked vehement opposition from economists, software developers, computer scientists, small and medium-sized businesses and some large companies. Their arguments convinced MEPs to heavily modify the original proposal to ensure that computer programs could not be patented. These modifications proved so controversial with the European Commission that the directive was sent back for redrafting by an independent body consisting largely of member states' civil servants, including officials from national patent offices.
However, the text produced at the end of this process, in effect, removed the MEPs' modifications, enraging those who had sought to place limits on the directive.
"Their [the Commission and the Council] convoluted and misleading Patent Newspeak, negotiated in non-transparent backroom dealings, is an insult to the European Parliament, the European Economic and Social Committee, the Committee of Regions and the innumerable experts and stakeholders who have engaged in serious investigations on this directive project with us," Danish MEP, Pernille Frahm, said.
The directive's stated purpose is to harmonise patent regulations for computer-related inventions across the EU, while steering the EU away from a US-style patent free-for-all, but critics within the European Parliament said the Commission and the Council seemed to be ignoring those aims in favour of the interests of large companies' patent departments.
"If [the Council] don't get what they want, they simply bury the directive project and try to find other ways to get around the existing law, whose clarity is so painful to them," chairman of the Greens/EFA Group, Daniel Cohn-Bendit, said.