The software patent war isn't over

The battle over software patents in Europe may have been won, but the war is far from over

The rejection of the software patent directive is a victory for developers, a victory for small and medium-sized businesses, and a victory for common sense. It was poorly thought out, the whole process dragged on for almost fifteen years, and it was pushed through by big businesses who, whatever their protestations, only care for their own interests in this particular matter.

Congratulations are due to all those who fought against the patent directive, which would have done irreparable harm not just to the European IT industry but to every industry in Europe that does, or one day hope to do, business online. All those who feel cowed by battalions of well-funded lobbyists glad-handing their way through the corridors of power take note: the race does not always go to the powerful, if you're prepared to fight.

But sadly, we still have not heard the last of this issue. If there is a business to be built out of software patents or indeed patents that cover business methods that just happen to be conducted online, then big business will continue to attempt to get such patents accepted.

The fight over this directive has seen two diametrically opposed sides who not only failed to find a common position on barely anything, but who rarely found a common language in which to even start discussing the issues at stake. Seeing a panel, last December, of politicians and patent officers trying to explain developer issues to a room full of professional developers would have been comical if it had not been so tragic.

That lack of common ground extended to the rest of the arguments. Those proposing the directive insisted that it was created not to allow software patents but to create a common position on software patent law across the EU. To the opponents of the directive, what mattered was that whatever the intentions, the effect would have been to encourage widespread take-up of software patents across the community akin to the situation in the US — which even its proponents admit is in need of reform. In the end, big business realised that if passed, the directive would have been so compromised by the anti-patent groups that it ran the risk of making it harder, if not impossible, to maintain software patents across Europe: a common ground they did not wish to visit.

So now that the pressure is off at the European level, those businesses who want software and business method patents will seek to get them through by the back door — that is, national patent offices on a case by case basis. This will take longer but, make no mistake, they will try. The anti-patent lobby has shown it can launch a highly coordinated and effective campaign when necessary. Now it must be prepared to be proactive, monitoring patent filings on a national level. The battle across Europe may have turned into nation-by-nation skirmishes, but the war still needs to be fought.


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