[gbz]

Too much ink has been spilled on this topic but most arguments against software patents continue to be patently confused and unelightened about the core matters. For one, patents do not exist purely to 'incentivize', but also for reasons of fairness and justice. If software patents should be abolished, why exactly do we need copyright laws? Why don't we allow any book/paper/poem to be copied and resold by anyone under their own name? Why don't we allow people to make derivative copies of say harry potter books and build their own fortune? Im sure society wont be worse off for it.

Second, the problem with the patent system isn't that patents are given too easily (trust me, its not that easy), or to obvious things -- as they say, all beautiful solutions are obvious in hindsight -- but that companies that infringe patents have convinced themselves that they are within their right to do so. There's definitely a strong case for giving immunity to companies below a certain size (revenue, employee base etc) from patent prosecution, but most large companies can easily license patents but refuse to. Yes, there are still abuses of the system, but those are bound to arise no matter what system you put in place.. someone will always try to game it. And as software patents are litigated, common law will settle down on standards and businesses will know whats kosher and whats not. Much of the current excitement is because we are currently in the midst of the first explosion in assertion of software patents where common law is still evolving.

Last, many of the claims being made regarding the supposed absurdity of apple's patent claims are so fundamentally (or willfully?) uninformed, that it begs wonder (not very unlike the willful distortion of news from other countries thats so common in major western news platforms). Apple never really asserted a patent on a rectanle with round edges.. and as for its claims on UI elements -- it was a trade dress claim primarily, not patent claim. The bounce back and tap to zoom claims were patent claims -- but rest assured, micrsoft would probably have implemented the same with no bounce back and context menus to zoom. (no ms office app after 30+ yrs in mkt still has bounce back -- so maybe its not that obvious). However, the prior art arguments are legitimate and can only be settled in court.. which samsung simply failed to do.

[expaand]

What does abolishing software patents have to do with "copyright"? Two completely different animals.

I am for abolishing software patents - for all the reasons everyone sites. But "stealing" someone's actual code or implementation or book or music is another story.

[gbz]

Not sure why they are completely different animals. Both protect property rights in creative work which can be easily copied/replicated (without attribution or compensation).

As for abolishing software patents -- would help if you can list the reasons people cite -- I can't offer a counterargument otherwise.

[fpgeek]

Patents aren't supposed to be about property rights in creative work that is easy to replicate, they're supposed to be about work that is hard to replicate.

Remember, the closest alternative to a patent is a trade secret. The patent bargain is supposed to be: Tell us the secret (so it won't be lost and others can build on it) and we'll give you a temporary monopoly on it.

Looking at how the bargain plays out in practice illustrates the big problems with software patents:

1. The inventions described are easy to independently invent. The public is not getting much of anything when told the secret.

2. Software patents don't have adequate disclosure. They're deliberately written in opaque language that practitioners don't understand in order to make the invention sound more significant and to make the claims as strong as possible. They also don't include source code or any guidance on the software engineering tradeoffs required (e.g. performance, flexibility, modularity, etc.) required to practically realize the invention.

3. Even if the disclosure were adequate, the incentives of the patent system (in this case, willful infringement) mean that practitioners never look at them. This is everything from the patent attorney coming to your office and telling you to never, ever look at a patent to Groklaw posts that say that if you're a software developer, you might not want to read posts that discuss patents in detail.

[greyfade]

Copyrights are for the expression of ideas.

Patents are for the implementation of ideas.

Trademarks are for the names of ideas.

See the difference?