I don't think his piece was intended to be a rebuttal to serious informed analysts so much as an attempt to discredit the naive abolitionists who frequently know little or nothing about patent law and who fix on edge cases and abuse as if they are the norm and declare 'off with his head.'

If you are irritated by such standard arguments, which I respect, bear in mind that there are those of us who are frustrated by endless statements about how 'obvious' software patents are and how the edge cases demonstrate the whole system is broken and hence must be abandoned which is as coherent a position as proposing to do away with criminal law because of high profile miscarriages of justice. The law is an ass. Duh.

Agreed. He seems wowed by the Greek letters and radical signs that he quotes from the PageRank and Apple patents, thinking it is some precious knowledge that we public would be lucky to (eventually) be able to use. In truth, by the time people can use the knowledge, unencumbered (even with a proposed shorter patent timespan), it is obsolete and/or obvious. So the whole too-long article is built on a questionable premise, that software patents are worth preserving.

I particularly enjoyed the bit where he starts with, "What we keep calling 'software patents' are just regular old patents", then spends several paragraphs discussing the history of software patents and how they've been treated differently than others.

There's a difference between patents that happen to cover software and a carved-out subsection of patents designated specifically for software by law. We currently have the former - Niley believes we should have the latter.

That's certainly true, but as I understood it, he's arguing that patents that happen to cover software are no different from patents that happen to cover anything else, and then he goes on to describe in detail how patents that happen to cover software are different from others.

I'll attempt to clarify, but these my own words, not Nilay's:

1. There is nothing inherent about "software" that suggests you can't create a patentable invention with it, therefore statements like "software patents shouldn’t be allowed" are wrong, or at least equivalent to "patents shouldn't be allowed".

2. Software has certain properties that result in undesirable side-effects or ambiguities under the patent system at present, therefore we should adjust the treatment of patents on software to mitigate those effects and clarify those ambiguities. An example would be reducing term lengths to something more compatible with the pace of innovation.

> 1. There is nothing inherent about "software" that suggests you can't create a patentable invention with it, therefore statements like "software patents shouldn’t be allowed" are wrong, or at least equivalent to "patents shouldn't be allowed".

I don't understand, how does that work? Let's get rid of the word "software" for a moment. Say I think that patents involving ducks shouldn't be allowed, for whatever reason. There's nothing inherent about ducks that means you can't make a patentable invention with a duck. But that by no means implies that my stance against duck patents means I'm against patents as a whole.

"One thing I do feel pretty certain of is that if you're against duck patents, you're against patents in general. Gradually our machines consist more and more of ducks. Things that used to be done with levers and cams and gears are now done with bills and feathers and webbed feet. There's nothing special about mechanical embodiments of control systems that should make them patentable, and the duck equivalent not." -- http://www.paulgraham.com/softwarepatents.html

I would also point out the other possibility in what I said before: that statements like "duck patents shouldn't be allowed" are wrong. Maybe "wrong" sounds too absolute, so substitute "incomplete" if you like. "Some duck patents shouldn't be allowed" is a different proposition, and probably closer to what most people actually think, but Nilay is specifically addressing the absolutist rhetorical frenzy on you see on sites like Quacker News.

The ubiquity of software (or ducks) in modern machines isn't really relevant to the implications of the positions people hold. Just because software is used everywhere doesn't mean that being against software patents implies being against all patents. I think what you and others are trying to say here is that if you're against software patents, you should be against all patents, but that's substantially different. It's taking an invalid rhetorical shortcut of assuming the other person has no good reason to make the distinction, rather than actually asking whether he does.

As for "some", you may be right, but I'm hard-pressed to think of any worthwhile software patents. Really, the fix for software patents is probably to reduce the term and vastly increase the requirements for novelty rather than eliminating them altogether, but on the other hand I really don't see much downside to simply disallowing it completely. Maybe I'm missing it, but patents don't really seem to be a requirement for software innovation.

That isn't what's being said in that paragraph at all. You're fixating one one sentence (the second) and completely ignoring the latter two. It's not about ubiquity, it's about software and mechanical parts being equivalent in their ability to comprise inventions. They're just different materials you can build inventions out of. It speaks no more about the merits of an invention than any other material.

Put another way: What's so special about "not-software" or "not-duck" that excludes it from the issue you have with software or duck patents?

> Put another way: What's so special about "not-software" or "not-duck" that excludes it from the issue you have with software or duck patents?

That's pretty much my point. The original construction assumes that not only is there nothing special, but that the person arguing against software (duck) patents thinks that there is nothing special.

My real complaint is phrasing it by saying that a person who argues against software patents must be opposed to all patents, when it would be much more correct and much less insulting to say that this person should be opposed to all patents. One reduces the other person's argument to an absurd degree without allowing for any possibility that they might have a point, and the other just states why you (or whoever) think they're wrong.

I honestly don't know what you're talking about. I'm sorry you were insulted by something I didn't say, and that you feel the argument you didn't make was unfairly reduced to absurdity. I was only trying to help.

Another dubious aspect is linking to PG's essay with the implication it's a slam dunk argument for software patents. While PG may come out in favor of software patents, he readily admits that the issue is difficult.

PG does make a good argument that abolition of software patent would be a step in the abolition of all patents (and the incentivation of companies to hide all profitable innovations). Yes, but the further institutionalization of software patents could just as easily result in a limited number of large companies owning the right to innovate in any fashion. Pick your poison.

One thing to consider here is that GPL's software provides a similar incentive system to the patent system. In exchange for releasing its algorithms, a company gets to distribute a huge store of existing software. Letting that arrangement replacement the patent system seems like a fine approach to me.

The fact software patents are published in their patent form isn't any better than "hiding these inventions". As others commented, nobody reads software patents (it's even legally dangerous to do so).

What we have no is the worst of all worlds: Invention secrecy and noncompetitive monopolies.

Also, software is a composition of far more patentable components than other things -- so patents are much more troublesome in that field. A software patent is somewhat like patenting a literary concept or a musical technique.