The vote passed by the European Council on Tuesday marks a dark day for software developers in Europe, private citizens and small companies who cannot afford to launch or defend expensive patent lawsuits.
It is a triumph for big businesses, for whom the way is now almost clear to use software patents and threats of litigation to intimidate small competitors out of markets, and perhaps even stop competitors from creating compatible software.
We're all going to feel the effects, and it's not going to be pretty.
The first problem when talking about software patent law is the language that is used. One of the best ways to win an argument is to use language that obfuscates the issues; just ask any lawyer. And if there is one thing that is more deliberately obfuscating than legal language, it is patent language. Just imagine how bad things get, then, when people start wrapping patent language up in a thick coating of legalese so they can draft laws on the subject. As if that is not bad enough, the whole has a soft gooey centre of software jargon which, to the chagrin of most observers, the European Patent Office and the other powers that be who have been pushing through the Software Patents Directive consistently refuse to define.
At the centre of the argument lies the term 'technical'. I'll leave it to the esteemed Foundation for a Free Information Infrastructure (FFII), which has perhaps done more than any other to translate the language of the lawmakers, to explain the subtleties of the terms and the attitude of the Patent Office. What I find quite Orwellian is that a term that even the Patent Office admits (and seems proud to admit) is so vague, can seriously be wrapped in the precise -- if obtuse -- language of patents and law.
Language is further used to disguise the agenda of the lawmakers; every proponent of the legislation that got passed on Tuesday will say they oppose broad and trivial patents, and they will say this is precisely why they have pushed for the particular wording that has been used.
And yet according to organisations such as the FFII, this legislation will promote exactly the type of broad, trivial software patents that have caused so much trouble in the US where even Amazon chief executive Jeff Bezos, whose company patented the infamous 'One-Click' method, was eventually moved to write an open letter calling for patent reform. The One-Click patent, together with others such as Priceline's Reverse Auction patent and Open Market's 'Shopping Cart' patent, which is now owned by Soverain Software and which recently came back to bite Amazon, are prime examples of the sort of business methods that we are now likely to see patented in Europe. Such patents are the software equivalent of patenting the corner shop.
So where exactly are we now in Europe?
The Draft Directive started with the European Commission and then went to the European Parliament which, after being bombarded with intense lobbying from both sides of the argument, came out against software patents. This was not the result the big companies wanted, and they have been working hard since to get that decision reversed.
Tuesday's vote shows just how successful they were, as virtually all the limiting measures introduced by the European Parliament were ripped out. According to James Heald at the FFII, the new wording is designed to make it sound as though business processes are ruled out, but in fact it just rules out business methods that are not technical. And of course we still do not have a definition of that term.
Claims by the lawmakers of impartiality and a fair hand when weighing up the interests of big business against everybody else also do not stand up to scrutiny. In 2002, when the original draft directive was published, the digital fingerprints of the BSA's European director of public policy, Francisco Mingorance, were found all over the document. When we tracked down Mingorance at the time (who was happy to talk to us), he professed ignorance as to how the metadata in the draft document could contain his details. But it did.
The Directive will now be sent back to the European Parliament for another vote in the autumn, as the different bodies of the EU engage in a game of ping-pong. The catch is that if the Parliament still doesn't like software patents, it has to have a majority of all MEPs to put its amendments, which means that in practice they need a two-to-one or three-to-one majority in the chamber.
If the Parliament is successful in that vote, then it will go back to the Council for a second reading, and then if the Council still disagrees then it will go to a 'sudden death' reconciliation committee, which will have six weeks to settle the matter.
When I spoke to Heald he pointed out three areas of concern with the Directive as it stands. First of course is the failure to define what is technical and what is not technical.
Second is the danger that companies could make it impossible for anybody else to write compatible software. Although the European Parliament suggested that there should be special measures to stop companies doing this, the Irish presidency rejected these, insisting that the procedure used recently against Microsoft will be sufficient to enforce this principal. The fact that this investigation took the might of the Competition Commission three years, and that launching a full-blown competition inquiry every time someone tries to use patent law to stop another company producing compatible software is totally unrealistic, seems lost on the Irish. All they had to do was to say that you cannot use patent law to stop someone making compatible software. Is that really so difficult?
And the third issue is whether you will be able to stop someone posting code online as part of a discussion about that code. It currently looks like such publication could indeed be banned -- which may fatally cripple such debates.
There is still a chance to stop this vision of madness becoming reality. Write to your MEP now and start lobbying and educating them in advance of the next vote on this crucial piece of legislation.