In a couple of days we'll all be rushing out to vote for our MEPs. And of course we'll all have checked the candidates' positions on software patents ...

Not that their positions seem to make much difference. Over the past couple of years the highly divisive issue of whether Europe should adopt US-style patenting of software has shown the European lawmaking process in a particularly undemocratic light.

In 2002 the European Commission produced a draft directive on software patenting. The rationale was that different national patent offices were interpreting the European Patent Convention in different ways - despite the fact that the EPC pretty unambiguously states that "computer programs as such" are not patentable.

And so the various lobby groups got lobbying. Open-source nuts argued that software patents kill innovation, make it impossible to create software and destroy the livelihood of small startups - just as they have done, err, in the US. Mad business types, on the other hand, argued that a lack of patents kills innovation, makes it impossible to create software and destroys the profitability of large firms - just as we have, err, seen in Europe.

Clearly both points of view have some merit, or none at all, depending on your biases.

Anyway, the unelected EC's draft directive backed the big business position. The European Parliament then rewrote the draft, taking the open-source position. And then last month the Council of Ministers rejected most of the parliamentary amendments and all but reinstated the original draft.

This draft will go back to the European Parliament in the autumn, where who knows what will happen to it.

All this farcical seeing and sawing reveals not only the flaws in the EU's lawmaking process, but also a fundamental misunderstanding of the problem with patents.

To be patentable, an invention not only has to be in a permitted field - which may or may not soon include software - it also has to pass two vital tests: it must be original; and it must not be obvious.

Most of the problems with software patents arise not from the software aspect per se, but from the ease with which the inventive step is replicated by others - which relates to obviousness and originality.

The real problem in software patenting is not whether we, as a society, should allow it, it's whether we are prepared to pay for patent examiners capable of properly applying the rules.

Patent office examiners are civil servants on strict pay scales. Their opponents - commercial patent attorneys - tend to command huge salaries if they are any good.

So whatever the EU lawmakers decide, enforcement will rely on examiners who earn a fraction of what their opponents charge to secure patents on inventions that may well be a bit marginal.

Few firms can afford to challenge patents in court, so the examiners are really the judge, jury and executioner as far as, say, a small software startup is concerned.

So instead of tinkering with the draft directive, our MEPs should instead propose world-beating salaries for our patent examiners, to get the brightest and most cunning minds on the side of the law.

Sadly, like all of us rushing out to vote on Thursday, this will never happen.