Software patents - gone but not forgotten

It’s now rather overshadowed by what’s going on in London currently, but the other big news of yesterday (apart from the Olympics) was that the European Parliament has thrown out the bill which would have harmonised patent legislation across Europe to enable software to be patented.

The thumping majority by which it was rejected is being seen as a win by the anti-patent lobby, while the pro-patent side is trying not to appear too upset. But I can’t help but feel that a black-and-white win/lose view is somewhat simplistic.

What the European Parliament decision does is maintain the status quo - with national patent offices taking a variety of approaches. And while a centralised approach might not have succeeded, what we’re likely to see now is a change of tactics from the pro-patent lobby. They’re likely to concentrate on changing the system to their ends country-by-country.

This is actually a retrograde step as far as the anti-patent side is concerned. Whereas before there was the opportunity to bring together protest Europe-wide, now the arguments are likely to take place at a national level. The lobbying efforts of the pro-patent side aren’t diluted by this - after all, most of them are multinational corporations - but for the anti-patents lobby, it’s much more of a divide-and-conquor situation.

The other factor coming into play is that there will continue to be widely differing national standards and definitions of what’s patentable and what’s not. Given a few more years of Europe-wide confusion, it’s entirely conceivable that the issue will come back to the European Parliament, only this time with a far more plausible argument for harmonisation. And needless to say, the level of harmonisation is likely to take the policy of the most pro-patent country as its starting point.

So I’m not sure that this decision can be regarded as a victory for either side. What’s certain is that the argument is going to go away any time soon - it’s just been shifted to a different time and place.

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