At the end of a raucous meeting in London on Tuesday, the minister for science and innovation, Lord Sainsbury, and the UK Patent Office agreed to consult further on the pivotal issue of what should constitute 'technical contribution' when used to decide whether a particular software patent should be granted.
The European Software Patents Directive, which has not yet been finally approved by Europe's politicians, will allow patents for software that can demonstrate a 'technical contribution' and which satisfy the tests of obviousness that other patent applications have to pass. Software that does not demonstrate a technical contribution will not be patentable, say the backers of the directive, which include the UK Patents Office and Lord Sainsbury, who has helped steer the legislation through.
Critics say the directive does not do enough to define what is meant by technical effect, and fear it will lead Europe towards the US situation where software is widely patented.
The laughs from the audience of experienced software developers in the DTI Conference Centre on Tuesday, as representatives of the UK Patent Office tried to in vain to make the distinction, appeared to convince Lord Sainsbury that more work needs to be done here.
Mooting the idea of a seminar on the issue of technical contribution, Lord Sainsbury said: "We will see if we can do some more work on technical contribution. It would be useful for us to get some more views, even if after this legislation is passed, on how we interpret that. This is key to the whole issue."
But Sainsbury stopped short of saying that it would be possible to affect the legislation itself, and hinted that only those who were in Tuesday's meeting would be invited to any further meeting on the issue. The Patent Office restricted places in Tuesday's meeting to those who had written to their MPs on the issue, and even many of those did not receive invites. Any further meeting is likely to be similarly restricted, said attendees.
Tim Jackson, a developer with London-based Premier IT Group, said the problem is that there is no definition of what constitutes technical contribution. "There has been a very low barrier," he said. "This directive will allow software patents."