[ScottBurson]

You give no basis for your rejection of item 4, and while IANAL, I think you are wrong. I have definitely worked for companies whose corporate counsel advised us software engineers not to read patents related to the work we were doing. There is little to be gained by doing so, I was told, and it would expose the company to the possibility of triple damages if it somehow became known that we had infringed a patent we had read.

Yes, there are people who read patents, but AFAIK, at least in the area of software, they are not usually practitioners.

All that said, I actually agree with you that discarding the patent system entirely, even just for software, would be throwing out the baby with the bathwater -- but I also have to agree with those who argue that in the case of software, the baby/bathwater ratio is just awfully small.

[ajkessler]

RE your first point, you're sort of correct. Courts can award treble damages for willful and wanton infringement of a patent. Courts don't award treble damages willy nilly; they seem to award them when you intentionally rip off somebody's patent. Even if you know of another's patent rights, if you have a good faith claim as to why/how your patent doesn't infringe, and if you have a solid opinion letter from counsel, you generally won't get hit with increased damages, even if you lose the underlying suit.

RE software, I'd tend to agree with you. The original post makes the case that all patents are bad though, and that they specifically prevent that transmittal of knowledge. That's really what I was responding to.