Many Polish IT companies are critical of a draft patent directive recently approved by the Council of the European Union. Poland tried to block the controversial draft for months, but eventually failed to prevent its approval. It consequently submitted its reservations in writing.

After a long battle, the Luxembourgian presidency of the EU finally pushed through the directive. The presiding minister Jeannot Krecke prevented a professional debate on the directive despite demands from Denmark, Poland and Portugal. The directive concerns patenting inventions with the use of a computer. Despite their reservations, these countries did not openly vote against the directive. "This controversy is very serious," said Polish Science and IT Minister Michał Kleiber. "I don't know if it will be possible to find a common ground between the Parliament, European Commission and the Council of the EU by the planned date-the spring of 2006."

The directive deals with issues directly linked with computer software, the basic tool used on an everyday basis by hundreds of thousands of small and medium-sized enterprises and millions of independent IT system manufacturers. The introduction and legal sanctioning of computer software, parts thereof, software functions and ideas for using computer software as solutions not subject to patent procedures, are in the interest of these professional communities and groups. The current wording of the directive does not offer this certainty.

SMEs and independent software engineers are concerned over the new law. Representatives of organizations opposing patents do not hide their disillusionment with the Council's decision. Companies such as Red Hat, MySQL and GMX have become involved in a campaign billed as "No to Software Patents." The directive permits the patenting of algorithms, or computer software operating plans. In this way, the patenting of mouse clicking, for example, by a large corporation, might lead to a situation in which other companies will have to buy licenses in order to use this simple operation in their software.

The introduction of patents for computer software would slow down, if not completely block, the development of family IT systems in EU countries. A sizable group of individual software creators would be eliminated, because they would have no control over whether their systems violate complex patents or not. They could therefore face accusations of legal violations. There is also a danger that small producers, due to high costs, will be unable to patent their own products. Eliminating this group would weaken the competitiveness of the telecommunications and IT sector and deprive it of its substantial intellectual potential. Many jobs will be endangered in the sector, which has been considered one of the most promising in Europe.

Of course, Poland is not against the directive on the protection of computer software as such. "We are against the proposed provisions in this draft, which are imprecise, confusing and unclear," Kleiber explained. "Poland supports clear legal instruments under which computer inventions would be eligible for patents, but computer software or parts of it would certainly not."

Poland is primarily concerned about contradictory provisions in Articles 4 and 5, which in essence permit the patenting of computer software. According to the Polish position, the directive should list examples of what could and could not be patented, and the European Commission should be encouraged to provide estimates of the financial implications of the directive.

The problem would not exist if the EC had met the request of the European Parliament a few weeks ago and re-sent the directive for a first-reading procedure. However, EC head Jose Manuel Barroso ignored the requests of Euro-MPs, thus giving the Council of the EU the possibility of finally confirming its position.

The Polish government insists that the fight for patents has not ended. The draft is about to reach a second-reading stage, first in the EP, and then possibly in the Council of the EU. To submit amendments to the directive in the EP a majority of 367 MPs is needed. Unless such a majority is mustered, the directive becomes law. If the EP manages to introduce amendments, the second reading of the directive will also be held in the Council of the EU, where each country has the right to submit its own amendments. Poland, Denmark, Cyprus, Latvia, Hungary and the Netherlands have already announced an intention to do so.

Even rejecting the directive in whole would not mean that the European patent law would not exist. Europe already has uniform rules that specify what can and what cannot be patented. These are stipulated in the European Patent Convention of 1973. In Article 52, the convention states that mathematical methods, methods for intellectual operations, methods for conducting business activity, computer software, presentation of information etc. are not inventions under the patent law. This approach is due to the legal tradition whereby patents are only awarded for the material use of natural sciences (technical inventions), while patents for software cover abstract ideas.