Expansion on Paul Graham's: Are software patents evil? (convmediatips.wordpress.com)

I wrote this essay for a law class and I take a strong position on it thanks to Paul Graham. I shed some more light on real world case examples of software patent issues. Please let me know what you think:

The Battle Against Software Patents

Are software patents evil? At the very least, they are certainly debatable and have been for a long time. Court rulings on software patents vary across the board. In one case, they may rule that a patent holder has no leverage, the next court may decide to award millions of dollars in damages. One thing is for certain, when software patents issues arise, the damages in request are not minute. The other truth is that the cases are always filled with nuances. The question to be decided is two-fold: “is it bad, given the current legal system, to apply for patents? and also a broader one: is it bad that the current legal system allows patents?”. Looking at one case, VirnetX v. Microsoft, we will see that patents are indeed enforceable in some courts (particularly the Eastern District of Texas), while looking at another, Function Media v. Google will find a patent completely illegitimate. I believe that patents are evil; they break one of the fundamental rules of capitalism: competition. In this paper, I will discuss the different rulings on different cases and attempt to persuade you that patents are indeed evil and at least should be unenforceable – even though that may not always be the case in reality.

Let’s go ahead and clear something out of the air before we even start. One would notice that this paper began by asking “are software patents evil?” However, I am inclined to believe that if software patents are evil, then patents as a whole should also be deemed evil. As Paul Graham states, “gradually our machines consist more and more of software. Things that used to be done with levers and cams and gears are now done with loops and trees and closures. There’s nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not[i].” Even as such, we will discuss cases that strictly pertain to software issues. Why? Because software cases tend to illuminate the subtleties of patent law. Before we go any further, let’s discuss what the criteria for patentable material is and relate it to the software industry.

The first question in the USPTO’s patent process flow chart asks, “has your invention already been patented?”[ii] If the answer to this question is Yes, the office suggest that you end the process. This as to be expected from the office that believes most firmly in the power of intellectual property; unfortunately the office and I have a big disagreement in this regard. Also, in order to receive a patent, your invention must go beyond being simply “new;” it must transcend to the point of being novel and unobvious. The last thing that we will see in the Google case is that the company with the patent who is filing the lawsuit sometimes must actually have the patented process in production (this sounds fairly obvious, but we will briefly discuss the tragedy of patent trolls later).

Sometimes, patents do fly with the court. The most infamous of these software patent cases is Amazon v. Barnes and Noble and Amazon’s “one-click buy” patent. The problem with this patent is that not only is it enforceable but it is ridiculously obvious. As Paul Graham puts it, “Any online store that kept people’s shipping addresses would have implemented this. The reason Amazon did it first was not that they were especially smart, but because they were one of the earliest sites with enough clout to force customers to log in before they could buy something.”[iii] However, this case is simply too old to discuss, but it is definitely worth mentioning as it is widely considered one of the most ridiculous wins for a company enforcing software patents.

However, we are going to discuss a different case involving the biggest tech company in history: VirnetX v. Microsoft. In this case, a decently si...