The European Parliament last month dealt a blow to programmers seeking clarity on the patentability of computer-implemented inventions (CIIs) when it rejected a draft directive on the subject by an overwhelming majority. So where does that leave European programmers and software investors?

A precise legal definition was one of the issues being debated and amended right up to the rejection. But, essentially, a CII is one whose performance involves the use of a computer or similar programmable apparatus, and has one or more features realised by means of computer programs.

The CII Directive was intended to harmonise the laws of European Union (EU) member states; to clarify uncertainties in the law in this area; and to bring the European Court into the legislative process, providing one central authoritative body.

Without the CII Directive to harmonise the law across Europe, patent laws in the EU member states remain unchanged, and their day-to-day application is left to national courts and patent offices.

In the UK, patent law is shaped by three principal acts: the Patents Act 1977, the European Patent Convention 1973 (EPC), and the international Agreement on Trade-related Aspects of Intellectual Property Rights 1994 (Trips). In accordance with the Patents Act and EPC, in the UK it is possible to obtain patent protection for CIIs, but not for computer programs as such. This has been the position since the early 1970s. The letter of the law has remained unchanged, but the meaning has gradually moved closer to allowing for the patenting of software.

One example of this dilution of the strict meaning of UK law was the shift caused by the signing of the Trips Agreement. Prior to that, the approach under the Patents Act and the EPC was that computer programs per se were not patentable under any circumstances, but inventions that would otherwise have been patentable would not be excluded from protection simply because the inventor chose to make use of modern technology.

Trips added a new dimension to patent laws. It did not exclude computer programs from patentability at all, but stated that ‘any invention’ could be patented if it met the requirements of novelty, inventiveness and industrial applicability.

The approaches taken by the US and Japan, both of which are Trips-contracting states, were much more favourable towards patenting software-related inventions. In the EU, approaches were variable, so that certain CIIs could achieve protection in some EU member states but not in others. This inconsistency proved unsatisfactory to investors in software development, and led to more than five years of debate on the draft CII Directive.

The work on the directive was largely focused on finding the line between inventions with some aspect of their implementation performed by a computer, and inventions consisting purely of computer programs. This work was often sidelined by the lobbying of parties concerned that the CII Directive was intended to allow for the patenting of software and, if enacted, would be a barrier to software innovation. It was this concern that appears to have caused the directive to be rejected so overwhelmingly.

This leaves the law in the UK and the EU unchanged. But it also leaves the position on the application of that law in each member state uncertain. What has been lost with the CII Directive is an opportunity to gain greater clarity of the law and greater certainty about the ways in which CIIs and similar intellectual property assets can be protected across the EU.

This continued uncertainty is likely to cause discomfort in the software development market, and could add to the rejection of the EU as a preferred forum for research and development investment by the larger software developers, in favour of the US and Japan.

We can only hope the lengthy debate has gone some way to providing guidance on how the laws should be interpreted. Until such certainty can be achieved in the UK with the authority of codified laws, the protection of software and CIIs remains on very shaky ground.

Ayesha Bramwell is a media and technology solicitor at law firm Shepherd + Wedderburn