Bloomberg.com reports that the European Parliment has rejected draft legislation that would have provided patent protected inventions that utilise computer software. Eva Lichtenberger, an MEP, states: "We buried a bad law and did so without flowers. The legislation would have hindered the development of small companies and helped big businesses because they are the only ones that can afford patent lawyers and litigation costs."
If this is their view, then some policiticans must be unaware of the reality of innovation on the ground or on how SMEs really work. Without reform of our patent system, it's entirely possible for a competitor to, in effect, simply steal your intellectual property with little if any recourse. Copyright is simply not adequate against someone who can simply reverse engineer and reimplement your IP. About the only people who killing this legislation actually helps are folks who do not want to pay for intellectual property.
As I see it, patent protection helps small businesss, and does so in three ways. First it gives their innovation legal protection - this means that your competitor can not buy a copy of your software, reverse engineer it, then recode it and sell it as their own (something that can, and does, happen in the EU today). Second, it enables SMEs to dicuss their innovation with larger firms on equal footing - big firms and small firms both gain from sensible patent legislation. Finally, it gives SMEs some assistance when talking to venture capitalists - VCs seem to like the protection to their investment that patents can.
At the same time, the process must be made rigorous to stop some of the sillier patents. What I'd like to see is for real innovation, implemented in software, is protected to same degree as real innovation is protected if not implemented in software. Why should a mechanical device be patentable, but software to dramatically improve battery life on a cell phone NOT be patentable?
It is a shame that the European Parliment has simply rejected this bill, and did not tackle the deeper issues.
It appears I'm not alone in at least some of the views above. London Liberal Democrat MEP Baroness Ludford says in a press release: "Rejection only prolongs the uncertainty around patentability of software-related inventions in the EU. It is running away from the need to take a decision. I deeply regret that MEPs are proving incapable of coming up with a sensible version of the text, one which could ensure support for innovation but also reassure software writers and users that we were not going down an American-style route of allowing patents for pure software. MEPs are not covering themselves in glory. This process has displayed all the defects in the way we legislate at EU level, which must be addressed if we are to avoid portraying ourseleves as incapable of legislating on complex but vital subjects"