Harmonisatsiooni alibi

It's certainly desirable to have a consistent legal framework within a single market such as the EU. That's called harmonization. Some use that valid objective for an excuse to pursue other goals.

The debate is not about whether the EU should harmonize patent law with respect to software but what the outcome of harmonization should be. It's true that the enforceability of software patents varies between the European countries, and even within some countries. That fact shows how questionable the granting practice of the European Patent Office is.

In order for patent law to be harmonized with respect to software patents, an EU directive has to provide clarity. Oddly enough, many of those who propose a directive with various loopholes that effectively allow software patents say that their proposal would serve the purpose of harmonization. However, if that is what they want, they should push for a directive that provides a maximum degree of clarity, one way or the other. It should either expressly allow or disallow software patents. If it is to disallow them, then it has to do so in a way that is waterproof and will result in consistent national laws all across the EU. It's not very credible to push for harmonization but oppose a clear-cut definition of what is patentable and what is not. Patentability cannot be defined clearly without also specifying the scope of "technical" fields under patent law. As long as almost anything can be categorized as "technical", a directive will merely trade one lack of clarity in for another.

It's a very unilateral perspective to say that unless one's position is accepted, there will be no agreement, so it has to be accepted. In the EU legislative process, the EU Council and the European Parliament have to find a common ground. Some of the member states (which are represented on the EU Council) defend certain decisions by saying that it were the only way to agree on a directive. That position could also be taken by the European Parliament and its supporters, anytime, so it is no argument for anything.

What Europe deserves is a directive that does away with software patents. If the alternative were to cast the effective patentability of software in stone, possibly for decades, then it would be the lesser evil if the legislative process ended without a result. Again, that's not the best of all options, but under certain circumstances it would certainly cause less damage to Europe's economy than a directive with terrible consequences. Harmonization is great but it can wait if necessary. There are many areas in which Europe has not achieved harmonization yet. For instance, we don't have consistent tax rates across Europe either.

Click here to read about the lie that software patents were necessary to make European companies competitive with their U.S. competitors