A controversial EU directive to create software patents has been overwhelmingly rejected by the European Parliament.

The decision came after a long debate, with a number of large corporations backing the Computer-Implemented Inventions (CII) directive, which has been opposed by the open source community and a large number of smaller software firms.

Micheal Azoff, an analyst at Butler Group, says the CII directive would have created a system for protecting not just individual programs, which are currently protected by copyright, but also the programming concept that lie behind them.

‘At the moment legal protection for software is provided by copyright, meaning that the actual manifestation software code is the entity that is protected not the idea in the code,’ he said.

‘In order to protect an idea you have to put through a patent application, a process that increases costs, because you have to do a due process, you have to do searches you have to put an application through the patent office.' 

The open source community reacted to the decision with delight.

‘This outcome is a clear victory for open source,’ says Simon Phipps, chief open source officer at Sun Microsystems, a key opponent of the directive. 

‘It expresses the Parliament’s clear desire to provide a balanced, competitive market for software, one that gives equal access to participants of all sizes,’ he said.

However, some in the legal profession have complained that the Parliament’s decision on the CII directive leaves the situation confused.

Mark Taylor, a lawyer in Lovell’s technology and communication group said that the 648 to 14 rejection by the EU Parliament was disappointing because it meant that the directive had been thrown out completely.

‘Europe is now going to be in limbo for a number of years… with different member states taking differing views on what [ software patents] should be granted, and what is enforced,’ he said.

‘The directive offered the chance to harmonise the position across the EU, and this decision means that chance has been lost. Since European procedure requires that a number of years pass before a position can be restarted, progress has been put back by a short period at least,’ he said.

Azoff agreed that harmonisation was needed but said, ‘What we need now is guidance and harmonisation from EU commission. We need a harmonisation that rejects the idea of regional software patents, not one that formalises them’.

The CII directive had public backing from a number of large corporations, including Microsoft, Siemens and Nokia.