EU software patents: the lesson of victory

The battle against bad law has been won at the last minute. Celebrate, but the war isn't over yet

Good news from Europe. The Computer Implemented Inventions Directive -- the software patents law to you and me -- has been defeated at the very last minute.

What's remarkable isn't so much that the directive has been kicked out of play as the strength of the boot applied. The legal affairs committee voted by 19-2 to ask Parliament to withdraw it, an astonishing show of dissatisfaction for something within a whisker of being approved. It is admirable that the process can stop bad law at such a late stage, but sobering that it got so close.

The directive was deeply flawed for many reasons. It started life 10 years ago as a reasonable attempt to clarify patent law, with broad agreement that there was no case to extend patents to business processes or to change the then-current state of protection for software. The American software patent arms race had barely started, open source software was a strange child and the implications for small companies were unexplored.

Since then, the commercialisation of intellectual property has become the biggest of big business. The process of clarification became one of quiet and secretive manipulation, with well-funded lobbyists intent on replicating the American way in the corridors of Brussels.

Deals done in the dark do not thrive in light. When the anti-patent lobby found its voice and finally dragged the legislators into public debate, it became clear that they did not understand what they had created. The hoped-for clarification had become obfuscation: software that exhibited a "technical effect" could be patented, but nobody who framed the law could explain the phrase to those who'd have to obey it. Something was very wrong.

It's not easy to close down a process that has massive official backing and ten years of momentum behind it, and in the end it wasn't good arguments or evidence that did it. It took the happenstance of European expansion to slay the monster: fresh eyes and the idealism of new members carried the day.

Europe now has a chance to produce a proper piece of software patent legislation that truly clarifies the issue. We have a real opportunity to influence this legislation and give European software developers of all sizes a real competitive advantage over those in the US.

Yet we cannot rely on the same luck next time. It's down to all of us in the industry to take a much closer, more active role in the framing of law and the mechanisms of power. The lobbyists haven't gone away, and their war chests are far from empty. We owe a great debt to all who fought for freedom in software: we can best repay it by making sure they are not alone in the fights to come.

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