"Since software patents are no different from hardware patents"
I stopped reading at this point since PG appears to have just stated that software patents are the same as other patents but not really discussed this point very thouroughly.
I would disagree completely. Software patents are certainly nothing like any other form of patent.
I'll leave the copyright vs. patent argument for the moment (because although there are some cases where software patents are equivalent to trying to patent, say, a minor 7th chord), but I think the key difference is this:
Software patents protect IP that is more often than not, common knowledge or completely trivial but where the implementation of that idea or concept will prove the success of the venture. "One click shopping" is like the canonical bullshit software patent. There are a million different ways to skin that cat, and patenting that as a concept is absurd.
Other patents protect inventors who come up with a unique idea, process or design, the implementation of which is relatively trivial once you have that insight or knowledge.
Things like fabricating a new kind of mouse trap are just so easy that anyone with a couple of bucks can do it: buy competing product, send to china, make profit.
But I can't just go out and build, say, Farmville, unless I had all the source code and the engineering team at my disposal.
I'm not sure how to codify that distinction, but I think that's the key.
It's a bit like trying to write a computer program for common sense. I can tell the difference between good and bad patents (and I've never seen a software patent that I didn't think ridiculous) but codifying it in law is another story.
It seems like you're saying though that software patents are being applied to things that are obvious - in which case, that would just mean the patent office isn't doing a proper job of not granting patents to subject matter that's obvious under current law.
Not so much obvious as fundamental. Something like "One Click Shopping" is a refinement of user experience - it's not the same as having a chemical process that allows greater transistor density.
The former requires skills and experience within a given field but isn't some kind of grand invention.
The latter is something that would require great research, insight and discovery (and no, I don't think usability research counts here).
Patenting one click shopping is like patenting being really good at something.
Like if I were an amazing neurosurgeon, and I came up with this way of making sure I had a really steady hand - a way of breathing or a way of holding my wrist, and then I patented that and said that, even if someone came up with the same idea completely independently then they need to pay me for it.
The one click patent is a really unfortunate representative of software patents. I've worked on software patents where the inventors are computer science professors at top universities. Those patent applications are at least as hideously complex and thrillingly ingenious as in the most technically complex hardware patents I've worked on, and, obviously I'm biased here, but at least as deserving of patent protection.
Okay so - this is the challenge: how do we codify that? It's like I'm saying we can look at these, as humans and use our common sense and say "This is reasonable" and "This is not".
Let's look at something I did recently: I came up with an idea for an ORM which doesn't require you to create any boiler plate base classes and uses the primary key structure of your database to intuit how to join tables together.[1]
Do you think that's patentable? I think not and to patent that would be total bullshit. I don't know what prior art exists (I've not seen anything that does this before but then I didn't really look all that hard) but even without prior art patenting this process would seem ludicrous to me because it's like patenting a workflow or a formula.
It's almost like the hardware analogue of that is patenting a way of using something, rather than an actual invention. Is that the distinction? Software patents that are awarded for figuring out how to improve the way we use existing inventions, as opposed to real inventions?
Sorry, I haven't been ignoring you, I've been struggling with how to respond. I think for now I will have to leave it at:
(1) since I'm a patent attorney, looking at your code and advising you on its chances of patentability would constitute legal advice and potentially initiate aspects of an attorney-client relationship outside of any retainer agreement, and I'm not going to do that;
(2) in the off chance that you ever do want to try to patent something that involves software, your future patent attorneys will thank you for starting to train yourself now to get out of the habit of making public posts about how ludicrously unpatentable your work is, no matter how much you might think of any current project at the present moment; and
(3) talk to a good patent attorney of your own, one who spends all her time on patent law subject matter, as soon as possible in the process, which will almost certainly be before you think it should be, about anything and everything you might ever possibly want to patent in the future.
I stopped reading at this point since PG appears to have just stated that software patents are the same as other patents but not really discussed this point very thouroughly.
I would disagree completely. Software patents are certainly nothing like any other form of patent.
I'll leave the copyright vs. patent argument for the moment (because although there are some cases where software patents are equivalent to trying to patent, say, a minor 7th chord), but I think the key difference is this:
Software patents protect IP that is more often than not, common knowledge or completely trivial but where the implementation of that idea or concept will prove the success of the venture. "One click shopping" is like the canonical bullshit software patent. There are a million different ways to skin that cat, and patenting that as a concept is absurd.
Other patents protect inventors who come up with a unique idea, process or design, the implementation of which is relatively trivial once you have that insight or knowledge.
Things like fabricating a new kind of mouse trap are just so easy that anyone with a couple of bucks can do it: buy competing product, send to china, make profit.
But I can't just go out and build, say, Farmville, unless I had all the source code and the engineering team at my disposal.
I'm not sure how to codify that distinction, but I think that's the key.
It's a bit like trying to write a computer program for common sense. I can tell the difference between good and bad patents (and I've never seen a software patent that I didn't think ridiculous) but codifying it in law is another story.