All of you bring up good points about problems with the patent system, especially the prevalence of patent trolls and companies stocking up patents to bring on patent wars. I agree that they are some of bad side effects of patents that altogether stifle innovation, rather than encourage it. Congress, like it usually does, was discussing how to solve these problems and punted via the America Invents Act.

What I am trying to say and argue is that we should not categorically exclude software from patent or copyright protection. Even though many entrepreneurs, inventors, and companies are innovating software without the incentives of patents, there are others who are driven. And when companies grow, they care about IP rights as assets and investors care as well. Incentives still play a large role because they help transform and realize a budding idea into practice and the market.

As for patent system itself, it's important to remember that section 101 is set low, and the gates are guarded by more substantive standards in 102 and 103 (novelty and non obviousness). Both test potential patentable inventions against the prior art, which in the case of software, the person having ordinary skill in the art should be quite high if so many smart and innovative makers of software are practicing the art. Normatively at least, the patent system should restrict patents for software. But of course, the PTO is far from perfect and too many software patents are granted still. But that reflects the failings of the PTO and institutions, rather than underlying fault of the patent system itself.

As for copyright, suggests some good arguments why its more limited rights may be apt for software. But consider that software is generally considered functional, which is among the traditional realm of patents. And fair use doctrine, even though it is a factor test, emphasizes the fourth factor, effect on the copyright holder's potential market. That constrains fair use, especially for software and the diffuse market that it plays in. But if enough people and companies innovate and reshape the software market so that it is beyond the control and reach of individual companies, we probably do not need a legislative solution to realize Mia's fair use suggestion.

-- ThomasHou - 08 Oct 2011