The European Parliament may have ruined its opportunity to reform the EU's software patents system with Wednesday's vote to approve the Directive on the Patentability of Computer-Implemented Inventions, according to a patent law expert.
The decision to adopt several amendments to the highly controversial directive, fundamentally altering its effects, is likely to lead to the directive's withdrawal by the European Commission, according to Alex Batteson, IT expert at British intellectual property law firm Bristows. He suggested that this might not be a bad thing, since patent reform could then be formulated by patent law specialists, without the need for democratic scrutiny.
"It may sound undemocratic, but the amended proposals arguably demonstrate that the issues being debated here are too complex to be left to the European Parliament, which can hardly be expected to have in-depth expertise in patent matters," Batteson said in a statement. "The amendments certainly appear to have irritated Frits Bolkestein at the Commission and he may decide to abandon the directive in favour of a renegotiation of the European Patent Convention. This would take the issue out of the hands of the Parliament and give it to national delegations of patent experts."
The directive was criticised by economists, small-business organisations, software developers and computer scientists for vague language that, critics argued, would have effectively allowed any software, algorithm or business process to be patented. This situation already exists in the US and benefits no one besides patent lawyers, critics said.
They successfully backed several amendments, including Article 6a, which is designed to prevent patents from interfering with interoperability. This amendment "arguably goes too far", Batteson said, because it could render many patents worthless. "The consequences for the IT sector could be very damaging. The European Parliament seems to have thrown the baby out with the bathwater here," Batteson stated.
The directive will next be debated by the legislatures of member states, which have the power to make changes, then returned to the European Parliament for a final reading.