EU Rejects Software Patents Bill - But What Happens Next?

• By Matt Stephens
• July 10, 2005

The European Parliament voted by a huge majority to reject the controversial bill which would have swept away the muddy grey area surrounding patenting software in Europe, and provided a single way of patenting software across the EU. It would have opened the floodgates of software patents, stifled innovation and generally turned software development into a nightmarish legal minefield.

The bill had faced opposition since it was first drafted by the EU head office, and became steadily more watered-down. The final version (prior to its defeat) stopped short of the U.S. patent system which, for example, allowed Amazon.com to patent the concept of buying something with one click of the mouse.

Patents work well when they protect “one-off” inventions; they protect the little peeps from the big evil corporations (at least in theory). It’s ironic then that patents aren’t a good fit for software, because software development is all about inventing. But it’s different because the inventions are never isolated. When you’re programming, you’re working through twists of logic, inventing simple solutions to complex problems. When you’re programming, you’re constantly designing, constantly inventing. It’s a heavily creative process. Having to stop and think about whether the elegant software solution you’ve just thought of happens to violate some obscure patent would kill the creativity. It would have made well-designed software virtually impossible to create.

So, for that reason alone, the EU’s decision is (on the surface at least) incredibly good news. The EU head office, which originally drafted the legislation, doesn’t plan to draft up a new version; so it’s effectively “game over” (at least for now).

Unfortunately it’s not all quite champagne and roses. The directive was, in part, intended to clarify exactly what a software patent is, and what can/cannot be patented. The result now is that, rather than there being a general “community patent” directive which provides a clear path for software patents (even if it just says “non!” in a loud voice to every software patent application), there is instead a fuzzy grey-area in which dodgy “have-a-go” software patents will need to be fought on a case by case basis, one country at a time.

In some ways, no legislation on the matter is an even worse state to be in. It’s likely that a lot of pressure will now be put on the European governments to pass new laws on the matter. So it might seem like it’s “game over” for European software patents, but if anything the game has simply fragmented into lots of isolated battles.