[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.