The European Commission recently tolled the death knell for the EU Software Patent Directive, or more precisely, the “Directive on the Patentability of Computer-Implemented Inventions.”
Like most Americans, I am fairly clueless about the EU political process, and I wouldn’t presume to write about exactly how it was killed. But the decision may have been swayed by an eleventh-hour public relations pitch against the directive by open-source spokesmen from the United States. On that aspect, I will add my two cents.
A delegation of open-source leaders, led by Linus Torvalds, published an “Appeal” at softwarepatents.com, calling software patents “dangerous to the economy at large, and particularly to the European economy.”
Look Beyond the Rhetoric
Leaders of the open-source software movement have long been harsh critics of software patents. The GPL itself says, “any free program is threatened constantly by software patents.” The appeal contends that copyright provides adequate protection for the creations of software authors. The Appeal advocated reliance on copyright law, rather than patent law, for the protection of software.
Not long afterward, in late January, the European Parliament’s Legal Affairs Committee recommended scrapping the pending directive, extending the debate until at least the end of the year. There may ultimately be an EU software directive that affects the scope of software patenting in Europe, but not any time soon.
Once upon a time, we intellectual property lawyers got to live peacefully in our ivory towers. Those were the good old days. Now it seems that intellectual property policy issues have become fraught with partisan rhetoric. Most open-source promoters are against software patents. Most corporate spokesmen side with patents, period, whether they cover software or not. But it is worth looking beyond the rhetoric.
Copyright is an odd champion for the side of light. It would be neither original nor controversial to observe that copyright is an awkward scheme to protect computer software. At best, it is a square peg in a round hole. Before you take up the crusade of copyright, remember what it covers. Copying — sounds like something you do to a book. Public performance — sounds like a play or a film, right? Derivative works — that sounds like an album by Vanilla Ice. This should be no surprise: The copyright law was written to cover books and music and plays and films.
Protecting Expression
Copyright protects expression, not ideas. But software is not really all that expressive. When was the last time you went to a poetry reading and heard someone reciting C++? (“Wow, that recursive reference in his data structure was so deliciously ironic!”) More important, software does not derive its value from expression; it derives its value from function. The fact that most software companies can get away with distributing software in object code form proves this point.
Code may be as elegant as a Chanel suit, but most people don’t care. They want products to work, and they want software that makes them work. Users not only don’t care how elegant code is, they actively don’t want to know. I love my TiVo and I love my PDA — not because they contain lovely code, but because I will never have to see what code is in them. I know in my heart that I am not alone.
This makes protection of software via copyright tricky, because functional elements or ideas are not protected — only expression. Not surprisingly, actually identifying software copyright infringement is like reading tea leaves. It’s straightforward, of course, when someone wholesale copies a piece of software. This catches up the shameless counterfeiters. But people using software to develop products rarely copy software without modification.
If they re-write code, they can come up with a very different looking set of expression that performs the same function. Have they infringed the copyright? That is not so straightforward. The serious copyright battles are over the copying of bits and pieces, structures, design elements and so forth — and applying copyright law to those cases is difficult, expensive and unpredictable.
Leave It to Lawyers
Unless you are a copyright lawyer, you probably don’t know that the rule for assessing infringement in several U.S. judiciary circuits is the “abstraction, filtration, comparison” test. The court will “first break down the allegedly infringed program into its constituent structural parts. Then, by examining each of these parts for such things as incorporated ideas, expression that is necessarily incidental to those ideas, and elements that are taken from the public domain, a court would then be able to sift out all non-protectable material. Left with a kernel, or possibly kernels, of creative expression after following this process of elimination, the court’s last step would be to compare this material with the structure of an allegedly infringing program.”
Easy as pie, huh? And if you aren’t in a circuit that uses this test, like the second, ninth or tenth judicial circuit, the law could be different. And you know which judicial circuit you are in, don’t you. Don’t you?
Compare patent law, which allows the patent holder to prevent others from exploiting products that fall within explicit written claims of the patent — which, by the way, are available for anyone to read. (That’s why it’s called a “patent” — it is patently available to all.) You lay the product on one side, and the claims on the other. If the claim covers the product, it infringes. If not, it doesn’t. Engineering around the claim is a relatively predictable process.
OK, I confess, it’s not quite that simple. There are a bunch of pesky exceptions like the doctrine of equivalents. But basically, it’s a more predictable process than engineering around a copyright. How do I know? You can hire a lawyer to write an opinion on whether a product infringes a patent. You can find such a lawyer in the yellow pages — I am not kidding, you can. That lawyer can even be legally liable if his opinion is wrong. But you say you want to hire a lawyer to write an opinion on whether a product infringes a copyright? Good luck with that. People who read tea leaves don’t give guarantees.
Wrong Direction
Open-source advocates have embraced copyright as a protection scheme because they perceive it as flexible. That is true — maybe too true. Also, to be fair, copyright protection is cheap (costing zilch) and patent protection is expensive (costing many thousands). But it seems to me that the rhetoric may be leading us in the wrong direction.
If you oppose software patents, it’s only fair to articulate why software patents are worse than any other patents. I don’t hear engineers soliloquizing about how awful it is to patent a chemical treatment process or an electronic device. Actually, the problem with U.S. software patents, if anything, is not their essential nature, but their quality. There are some reasons why software patents, in practice, tend to be issued when they should not be, and therefore are perceived as of poor quality.
In this respect, patents and copyrights are very different. Copyrights need not be filed or registered, and there is a very low threshold for protection. Quality of copyrights is not really an issue. Patents, on the other hand, are awarded after scrutiny by the Patent and Trademark Office. The PTO is required to refuse to issue patents that are “obvious” based on prior art, which means roughly that they are not sufficiently inventive to justify the award of the patent.
But until that last couple of decades, software patents were much less common than today, and many software developers did not seek patent protection. Some have argued that, in the 1990s, when software patents exploded in the U.S., the PTO lacked sufficient institutional knowledge of prior art to weed out the obvious claims. This institutional knowledge exists mostly in the form of previously issued patents, so a sudden and dramatic increase in filings causes a prior art vacuum. This has been borne out empirically, in the sense that many U.S. software patents — after being issued by the PTO — are later invalidated due to obviousness based on prior art, in lawsuits where the patent holders try to assert them against infringers.
A Clear Light
It is unclear whether this problem would translate to the EU. You might not guess it from the rhetoric, but the EU already allows software patents. The directive was intended to harmonize EU software patents, not create them of whole cloth, and to clarify the scope of software patents that may issue.
The quality of patents issued by the EU has actually been perceived by some as higher than those issued in the U.S., meaning fewer patents are issued, and fewer are facially obvious. The USPTO is historically underfunded, and budget deficits and the skyrocketing number of software and business method patent applications have not helped. For all we know, the same thing could happen in the EU, but it is not a certainty.
So, what I would like anti-patent activists to consider is this: Are software patents really a bad idea? Or just a good idea, badly executed? Or a good idea, executed as well as good ideas tend to get executed in the real world? By posing this question, I hope to retreat to my ivory tower for a while, with a cold compress, while the rhetoric subsides enough for me to take a nice nap — at least until the EU takes up the question again.
Heather Meeker is a shareholder at the international law firm GreenbergTraurig, LLP, and specializes in intellectual property transactions for software and other technology clients. Ms. Meeker is the co-chair ofthe Open Source Committee of the Science and Technology Section of theAmerican Bar Association. She advises clients regularly on open-sourcelicensing issues and open-source business strategies.
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I think that your discussion, particularly the following quote, really misses several key aspects of the issue as to why patents are harmful to software development:
"If you oppose software patents, it’s only fair to articulate why software patents are worse than any other patents. I don’t hear engineers soliloquizing about how awful it is to patent a chemical treatment process or an electronic device. Actually, the problem with U.S. software patents, if anything, is not their essential nature, but their quality. There are some reasons why software patents, in practice, tend to be issued when they should not be, and therefore are perceived as of poor quality."
There are several factors that taken together are leading to the current awful state of IP in the software community. (Much of these are aspects of the quality issue you mentioned above.)
* patents are often granted to software techniques that are obvious and not novel or innovative (e.g., amazon’s 1-click ordering)
* patents are often granted to software techniques for which there already is considerable prior art
* since patents on software techniques only recently became allowed, many companies have since gone back and patented existing prior art that they did not create (and thus removing (stealing?) these techniques from out of the public domain)
In other words, in practice, FAR more often than not, techniques are patented that do not represent any true innovation or any significant new idea. This contrasts greatly to the examples you gave above. Chemical treatment processes and electronic devices generally are only patented if they do represent a true innovation or a significant new idea.
In addition, there’s another aspect of software development that helps contribute to this sorry state of affairs. By its very nature, software development requires that authors use pre-existing building blocks to build their software, rather than re-invent everything every time. It’d be absurd for a developer to have to waste time writing their own new sort technique just to use it in an application that they’re writing that happens to need a list sorted. And so by its very nature, which is very similar to that of other scientific and engineering fields, software development requires an extensive "commons" of generally accepted practices and techniques which all developers can use. Otherwise innovation is stifled since everyone is forced to keep reinventing little wheels that they need to use in their applications, and are unable to focus their efforts and innovations on the real "guts" of their work.
And frankly, as a result of all this, the state of affairs we have today is that any developer that sits down and writes any non-trivial software application will wind up – completely unwittingly and unintentionally – infringing on dozens if not hundreds of patented software "innovations".
That’s no big deal if you’re a large corporation and can afford a large budget for acquiring, litigating, and cross-licensing patents to help get you out of this corner. But if you’re not, then you’re faced with 2 choices: take the risk of living in a chronic state of patent "infringement", or go out of business and find another line of work.
These are the reasons why it has become obvious to many knowledgeable people in the software field that software patents are an extremely harmful force, which is stifling innovation in the field. Those of us who engage in software development on a daily basis see first-hand the harm that is being caused here. I imagine that the reason why many executives and IP attorneys do not is that they are too far removed from the process, and lack sufficient understanding of the inner workings of the software development field.
We should not forget that many (most) of the major innovations in the software field came from non-patented ideas contributed by small entreprenurial firms and (even more importantly) universities and private R&D labs. If these organizations’ ability to make such contributions to the field is destroyed, the industry will suffer and stagnate as a result.
If I understand the thesis of the article, the author would like European citizens to choose whether they prefer copyright or patent protection for software, and if copyright, why? My two responses to that are that: (1) No one will ever get to make such a choice; the history of copyright legislation shows us that copyright monopolies are only expanded, never decreased in scope. (2) Even given the choice of living under a patent-only monopoly in algorithmic ideas (let’s not kid ourselves by describing the majority of software patents as "inventions"), or a copyright-only monopoly of software expression, I would recommend choosing copyright protection.
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The distinction for those of us who don’t work in companies with deep pockets, and want to be able to distribute our work gratis, free of undesired restrictions, is one of forseeability. The ethical person can avoid copyright infringement by ovoiding copying code to which you don’t have rights.
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There is no such easy course for avoiding patents. Even a talented patent lawyer cannot survey a body of software source code and tell the author that she violates no patents. They can merely make a statement that they believe a court would not find that they infringe the claims of a specific patent. But given the absense of an actual software implementation in filed patents, there is no practical way to search the thousands of patents available on vague ideas (see, e.g. Microsofts recent patent claims for the boolean IS_NOT operator).
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A number of reforms would *improve* the US patent system on algorhythmic ideas: forcing a real implementation (source code) to be presented; improving prior art searches so that the applicant isn’t the only one searching for it; allowing the public to submit prior art for pending patents; expanding the scope of "prior art" to include more than just the prior filed patents — scientific journals; sourceforge.net; IT publications; IETF, W3c proceedings.
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However, even with greatly increased funding and improved procedures, the fundamental problem would still exist: software is mostly about the expression of ideas, and I believe that these should not be patented. So did the authors of the patent system, but the initial scope of patent coverage has been expanded so that describing an idea as: "a computer system that executes [idea]" is patentable. Just as paper can be used to express any idea, so can software. That shouldn’t make software any more patentable than paper.
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–kirby
This lawyer probably thinks about her paycheck more than the issue involved. Patents are ok where large investments are involved, e.g. when making medications or a small enterprise that comes up with a new product. This is NOT the case with software.
Investment can be a low as a few hundred dollars and a few hours of our time. Most people won’t think of starting an enterprise on that. And if you do, you can always revert to the object-only option. Most software companies complain about piracy, not stealing software of others.
However, by law it is our intellectual property. I’m not developing things to let them steal by Microsoft. If it’s my code, take your hands off or make your stuff GPL.
I have copyright the moment I put my hands on the keyboard. I don’t have a single patent merely by the act of creation.
Patents are expensive. This violates the equality principle of law. If I can file a patent without a pay, hey, I’m patenting all my programs tomorrow. I don’t know what I’m patenting, but I don’t care..
Those who want patenting, want to strip the people of their right to create programs and leave it up to companies, since they are the only ones that can patent anything they come up with, however trivial. I won’t dare to touch my keyboard ever again if I can be fined by a company hoilding all those invisible patents (do you know them all by heart? Even the patent people don’t know, that’s why they’re investigating).
Patents? I love it. I’ll file a patent called ‘making multiple decisions by using a single branch construct’. This looks good but is simply a binary comparison of several binary coded integers like:
if (a AND b) then do-something()
If you fell for this one, think again..
Hans
Hi Heather,
Thanks for your article about software patents.
Its is good to get a view point from a person that is trained in law, most of us developers have a viewpoint on patents but have no training in law.
You posed the question : are software patents a good idea but simply executed badly ?
You also asked, why dont engineers complain about patents in their respective fields ?
Being both a professional software developer and an electronic engineer, I feel qualified to provide a response to your questions.
I rarely read patents except for the bad ones that are brought to the public attention but I have read a few anyway.
When I do read a patent I do not feel qualified to understand the material, even though I am an expert in the field that patent claims to cover. Who are these documents designed for ? If I cannot understand the implications and scope of these documents ( this is a deliberate strategy ) then I can only conclude that they are a form of intimidation. Who benefits from this intimidation?, its not the general public, unless you subscribe to the theory that intelectual progress can only be sustained by an economic model. I beleive there is compelling evidence to suggest that intelectual progress is innate to mankind and people who love science ( like myself ) would pursue scientific progress spontaneously and without reward. In my case ( and many others ) you could not stop me from exploring intelectual curiosity. This exploration is the corner stone of science and the free sharing of information is fundamental to that exploration. Scientests actaully want people to build upon their ideas and progress further, not place a barrier to building on ideas.
I ability to build on the ideas of others produces an exponential expansion of knowledge because anyone can contribute.
Advocates of patents say that comapnies need patents to recoup research and developement spending but there is no proof that the inventions would not have been created by some one else at a later time. In fact, humans are very smart! and indeed these inventions would be discovered spontaneously, I know because I work with a lot of talented people.
One of the goals of patents is to eliminate competition. A company will apply for patents specific to their own product line. This goal has nothing to do with intelectual progress, it is an economic goal.
Many patents are the result of people looking forward and anticipating what technologies will be hot in the future. This has the effect of preventing a large group of people ( the general public ) from working on problems in this area and hence sacrificing the exponential effect. Even though there may be no prior art, a competent engineer would independently re-invent these ideas when faced with the same problem space.
So hence the argument for software patents seems to be that companies need a monopoly with no competiton for intellectual progress to occur but this assertion is proveably false.
If all software patents were granted for genuine inventions ( rather than just ordinary ideas ) then there would be no problems with software patents. But If I read 100 patents and conclude that the subject matter is trivial and obvious if only I spent a little time exploring the problem space then software patents are highly undesireable. This appears to be the case with software patents in the U.S. and elsewhere.
To answer your question, are software patents basically a good idea but poorly executed, then of course the answer is yes ( assuming all patents granted are genuine inventions as defined by actual inventors ).
Does this mean that the current system is basically OK but only needs minor reform ?
No.
Basically 90% of granted software patents would have to be negated an no one is talking about doing that.
As for your other question, why dont other engineers complain about patents in their fields.
The answer is, they do ! But how do you compete against industry organisations that spend 100 million in lobying government and have strong relationships with media organisiations ?
Your voice just gets drowned out. It has taken a mammoth community effort to raise awareness about software patents and even then who remebers the complex arguments made by the anti-patent lobby compared to Bill Gates one liner "they are all a bunch of comunists".
Regards,
Scott Andrew Baillie
Senior Software Engineer.
The article starts from the premise that it is beneficial to society that abstract ideas are given patent like protection. If that is the goal, then of course copyright fails, but it is not the goal. The author asks to to leave it to the laywers … to completely ruin the world of software in my Oppinion.
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Patents are about "promoting innovation". Despite popular belief, they were not created to feed the few, and it is not a fundamental human right to be compensated for every spark of an idea you have. It certainly isn’t a fundamental human right to be compensated to that extent.
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The software industry has enjoyed years of healthy competition and innovation based on copyrights. Yes it is possible for someone to take your idea, but it takes effort and time to bring the competing implementation to market. This competition spurs innovation!
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In the time your competitor is catching up you have time to improve your product. Your competitor has to be better than you for people to switch over, and you can be better than them to keep customers. You have to innovate, and innovation costs money, but remember it’s innovation and healthy competition that society as a whole wants.
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Now consider patent protection for abstract ideas and even things like file formats. Consider a world of software rental, where most of the computer buying populace has followed like sheep into a world of Microsoft patent protected file formats.
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In this situation Microsoft can sit back and profit. They have no more need to innovate as they can rule out competition completely. They have a legal stranglehold over your data and can charge what they want with software rental to allow you to maintain access. They don’t even need to fix bugs any more, as there’s nowhere else you can go. Do you even think they’ll need to keep employing all those developers when there’s no need to innovate any more?
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Don’t believe me? Consider Internet Explorer. IE has enjoyed a few years effectively at the top of the pile. Has there been innovation in IE recently? It’s only now Firefox has come on the scene that Microsoft are suddenly having to sit up and think about revitalising it. If we were all using patented technology to surf the web Firefox could not exist. IE not enough? What about Office before Star Office? NT5 before Linux? Dot-Net without Java? Maybe not as obvious, but I believe competition had its effects for them as well.
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What about that company that has started to threaten traders in Europe? "pay us some money or we’ll raise a software patent suit against you. If you don’t pay now, we’ll charge more later." Sounds like extortion to me.
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Even to the few people that are joining in the American Software Patent Arms Race there are casualties and extra costs. Companies that thought they were on top of it are suddenly finding themselves having to pay more to laywers to get them through the mess.
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So how can you say with a straight face that software patents are a benefit to society? "Leave it to laywers" may be more a case of "Leave guarding of the hen house to the foxes".
The last thing the software industry needs is monopolies on IDEAS as opposed to EXPRESSION.
Copyright is absolutely the correct way to protect software. It ensures that software companies can compete fairly with software that performs the same functions. Software patents, on the other hand, allow one company to have a monopoly on the functionality of their product, making all competing products more expensive due to patent royalties, or even preventing competition in the first place if the patent holder decides not to license the patent or demands unreasonable royalties.
Because software is not as expressive as, say, books, there is often only a few good ways to implement any given function. Once these functions are all patented, then it becomes impossible to write software in an economically viable manner. If a given software product implements functionality from only a few dozen patents, the royalties start to make an impression on the price of the software. If the functionality is covered by hundreds of patents, the software will be priced out of the market entirely.
That is why copyright is the approapiate protection for software, despite the fact that software is not as expressive as books. The purpose of copyright is to prevent verbatim copying, and that is all the protection that software needs in order for software companies to make money. Even though competing software will often implement functionality the same way, the expressive style of the programmers will be sufficiently different to permit the competing source code to be effectively protected through copyright.
Patent protection, on the other hand, is excessive: it impedes competition, and thus results in higher prices. Copyright + patent protection is the worse kind of folly: nothing else in the world currently enjoys both forms of protection simultaneously.
Try applying patents to music.. See how many songs you can write with out infringing. why music? because sheet music describes the idea and there are only but so many ways to express something (just like codeing).
Imagine trying to write a song when the A chord or G chord are covered by patents.
Please keep in mind that software was originally traded freely both in source and object form..
Regarding the question of "quality", the EPO (European Patent Office) has granted quite a few very broad software patents, which happily are not currently legally enforcable, but may become so in the future.
I’ve seen examples from the list of patents and as a software developer I’m of the opinion that a frighteningly large number of them are of appalling "quality". Lots of non-original, obvious ideas with plenty of prior art for anyone in the field. So in sort, I see little reason to expect the EPO to do a better job than its U.S. counterpart.
More information can be found at http://www.ffii.org.
Aside from that, as a developer I don’t feel that the costs incurred by software patents (legal risks and direct costs involved in registering patents) are anywhere near being justified by the benefits which I could expect to reap from patenting my "good ideas". So I’m dead-set against them.
Just to prove how wrong your arguments are, I made a small rewrite of your central statement:
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Protecting Expression
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Copyright protects expression, not ideas. But knowledge is not really all that expressive. When was the last time you went to a poetry reading and heard someone reciting chemical composition? ("Wow, that drug treatment in his article was so deliciously ironic!") More important, knowledge does not derive its value from expression; it derives its value from function. The fact that most universities can get away with distributing knowledge in article form proves this point.
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The text may be as elegant as a Chanel suit, but most people don’t care. They want doctors to work, and they want knowledge that makes them work. Users not only don’t care how elegant text is, they actively don’t want to know. I love my plastic surgeon and I love my MD — not because they know lovely texts, but because I will never have to see what articles they read. I know in my heart that I am not alone.
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This makes protection of knowledge via copyright tricky, because functional elements or ideas are not protected — only expression. Not surprisingly, actually identifying knowledge copyright infringement is like reading tea leaves. It’s straightforward, of course, when someone wholesale copies a piece of text. This catches up the shameless counterfeiters. But people using knowledge to develop doctors rarely copy text without modification.
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If they re-write text, they can come up with a very different looking set of expressions that performs the same function. Have they infringed the copyright? That is not so straightforward. The serious copyright battles are over the copying of bits and pieces, structures, design elements and so forth — and applying copyright law to those cases is difficult, expensive and unpredictable.
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I guess your implying that suffocation is patentable 😉
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The words I exchanged:
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Universities………………software companies
Doctors…………………..products
Plastic surgeon………….Tivo
MD……………………….PDA
Knowledge……………..software
Articles………………….object code
Text…………………….code (source)
Centences………………data structure
drug treatment…………recursive reference
chemical composition….C++
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Just my 2 cts 😉
This is actually a very intelligent and coherent analysis of the problem of software patents and software copyright, but it fails in many levels. I know that the author does not claim to make a European software analysis, but why criticise the problem of European software patents with an American copyright analysis? The problem with this is that the argument may be true in the United States, but software copyright is a much less complicated issue in Europe, where the ridiculous filtration and abstraction test has been rubbished by English judges, while Continental copyright is perfectly applied to software all the time. Without this problem, caused by American courts, then the pro-patent lobby loses most of its arguments, and explains why the directive has been burnt in Europe.
The problem with the pro-software arguments that its proponents want to have double protection for software, as it is quite clear that they still want copyright protection to be able to prevent piracy. The argument for them is to continue with copyright protection where it serves them, but also to add patent protection so that they can prevent others from misappropriating their ideas. The problem with this is that these ideas tend to be extremely broad, and are often the result of already existing ideas. The history of software development is nothing but a long history of people adapting one idea and using it in their own program. But the protection of software ideas has another problem, and it is that in software, there are usually not many different non-obvious ways of performing an action and producing an effect. Text editors must all look sort of like they do and operate in the way that they do because there are not many other ways of doing it. If you can get a patent for it, then you have managed to obtain an unfair advantage on every other potential text editor makers.
The article also wants to make a case about patent quality, but it fails to explain just how important this is. If patents are being issued for obvious software inventions, then the entire application of the system should be looked at, as there is clear danger for the future of the entire field.
Ms Meeker also neglects to explain one very important point. Why are software patents needed in Europe? True, the EPO has issued some, but they have not been subject to the same level of enforcement in Europe, I believe that this is because owners may fear that courts could easily struck them down, as it is obvious that they are strictly in contravention of the written word of the European Patent Convention. The low level of enforcement has made European software patents very weak indeed, and that is the main reason why you have had the push by some sectors of the industry to get a directive. It is also clear that the European software industry is not suffering from the problems with software patents. On the contrary! Europe has a lot to win from curbing software patents. Software development in the United States has become such a toxic area that Europe could become a beacon of new software innovation.
Perhaps this might be a useful paralell for you as a lawyer to consider to help you understand.
Similar arguments to those that are used for allowing software to be protected by patents could be used to argue that the ideas in legal arguments should be protected by patents.
Have you considered the implications of that in your own industry? What if only the largest lawfirms could use eachothers arguments, due to crosslicensing? What if you couldnt even cite precedent without risking patent infringement? What if you could no longer perform your own job, much less start your own practice, ever, because at any court appearance you’d be risking infringing someone elses argument _even if you came up with it yourself_?
You say you could ‘engineer around the problem’, but as the expression would be covered by ‘copyright’ (iirc, it isnt even that today), the _idea_ of the argument itself would be what the patent protects. It’s not always easy to engineer around a specific idea.
While this is not a through analysis of the issues, thinking down that train of thought may help you understand where the opposition is coming from. Software and law both share some aspects of laws and logic that make them similar from an IP point of view.
The irony here is how you, like everyone else, completely misses the point. Yes, quality ‘may’ be a key issue for patents, but that term and its meaning is not very precise. The key problem here is that in say the car industry, anyone can make a tire. They can patent **their** design of a tire, including all its materials and appearance, but not the *idea* of puting tires on vehicles. But with software, even if you did have so called ‘quality’ patents, it is possible to patent the *idea* of something. The suggestion that patents are about protecting ideas, instead of real physical examples of real objects is bull. Initially that was never the intent and most patents outside the US never ‘ever’ tried to be that broad. In fact, at one time you had to actually show the patent office a working model to get the patent. Then someone babbled about how ‘inconvenient’ it was to get your patent in quickly and they went, "Oh, all right, just send in a diagram or picture." As for copyright.. That is a whole different issue causing chaos of its own. At one time you *did* have to register a copyright, then some twit decided that too was inconvenient, without considering the public interest in protecting the availability of historic, but financially non-viable arts, so now everything is automatically protected. This is on one hand a positive thing, expect they also keep extending the copyright limits out to infinity, without allowing for ‘if’ they are viable works. The result of both of these idiocies is a system that protects both basic ideas and prior art to such an insane extent that anyone without a $500 million dollar bank roll can’t a) produce anything, b) protect anything, c) protest theft or d) reuse an old idea, unless it is so old they just dug it out of a bloody tomb in Egypt. It is not a suprise that the only people claiming patents as they work in the US are good are people working for very large corporations and lawyers. Most of the tech industry, including a few of those big companies even, think it has gone totally insane. And I think they are 100% right.