Should the European Commission formalise the Computer Implemented Inventions Directive, it could seriously affect the development of open source software.

The European Commission (EC) on Monday rejected requests to rewrite the CIID, which although is likely to have relatively little effect in Australia, could seriously damage open source software development in Europe, according to a legal expert.

Jeremy Mark Malcolm, an information technology lawyer specialising in Internet-related law and speaker at the forthcoming Linux conference in Canberra, told ZDNet Australia  that patent laws could damage the European open source development community.

"It may perhaps stop some of the development that is going on in Europe on open source. You may find that some people developing software over there will have to stop doing it because of the threat of being sued over patent violations," said Malcolm.

According to Malcolm, who admits to being against software patents, said there is 'no question' that Linux already violates a number of patents, which could lead to further litigation.

"There is no question that some of the open source software that is out there - such as the Linux kernel itself - has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated," said Malcolm.

The CIID has sparked many months of argument, debate and confusion within Europe. It has yet to be formally adopted by the European Council, but if this does happen the directive will return to the Parliament. The EC spokesman said he understood that the Council is planning to put the CIID on the agenda of the March 7 meeting.

Malcolm said that confusion surrounding the future of software patents is also very damaging to corporates and an early settlement, either way, is necessary.

"What is more important is that we have certainty -- one way or another. Either software patents are allowed or they are not. This has been going back and forth since 2002 and one way or another it has to be sorted out," said Malcolm.

ZDNet UK's Graeme Wearden contributed to this report.