Talking software patents.
After sharing Fred Wilson's "Enough is Enough" on Facebook, I shared some thoughts with a friend of mine [entering his 3rd year Harvard Law (though without specialization in IP law)]. I apologize in advance for the big block of text.

"(Original post) Me - In agreement with Fred Wilson, it's one thing to patent a pharmaceutical, but patenting software ideas is inane: http://www.avc.com/a_vc/2011/06/enough-is-enough.html

Him - This may be irrelevant, but the guy begins by pointing out that a software patent is like a patent on music, and then says both would be absurd. But isn't a copyright, which covers music, rather similar to a patent in many respects?

Me - I believe he was pointing out the bigger picture--that the system has been perverted. The precedent has been set in this field, and I don't think he was challenging it on legal grounds.

It has come to the point where one can visualize in simple terms what is very hard to actually produce and then patent it. (Legal context aside) Music represents an end product ready for consumption. While copyrights may be similar from a legal point of view, the process from the creator or inventor's perspective is radically different. There is a potential for abuse that Fred argues has been realized.

Him - Yeah, I wasn't trying to say that he's making a legal error, but rather that his facts may be sufficiently off to derail his reasoning. Of course, software patents might be seen as a tax on later innovators. But then again, patents also reward innovation, specifically the first movers. More than anything, it seems to me that his beef is with how software patents are administered, rather than their existence altogether. Neither the fact that patents can be bought/sold, nor the fact that people are enforcing their property rights undermine the patent system itself. Instead, these events simply show that someone is enforcing the rights they've been granted. If he wants to take on software patents altogether, he ought to spend more time on showing how granting those rights here inhibits more innovation than it encourages: if that's true, then he might have a good point. Ample instance, however, exist for both sides. For instance, I'd say giving Microsoft some patent rights expedited the proliferation of computer technology. That said, the author and I would probably agree that more innovation-details might be needed before granting patents, although I don't know the particular facts of the case he's describing.

Good points. Surely innovation comes with a cost that patents offset. It's just his suspicion that too much value can be obtained by so little work and ingenuity. No in-depth analysis on Fred's part, but I do share his suspicion.

As for this particular case:
http://thisismynext.com/2011/05/17/lodsys-sends-ios-developers-cease-and-desist-letters-in-app-purchases-on/
and then:
http://thisismynext.com/2011/05/23/apple-steps-handle-ios-patent-troll-lodsys-small-developers/

I do think it comes down to the process of patent administration. I would like to highlight one example: the infamous Amazon One Click to Purchase patent. Securing this patent was not a matter of Amazon being the "first mover" on a novel/non-obvious idea as much as it was conducting business in a manner which was both obvious and organically derived... then patenting it... then using its rights in an anti-competitive manner against Barnes and Noble.

Is there not a fundamental difference in cost vs reward between Microsoft R&D and Amazon's One Click Purchase? I think so. There may be a problem. Identifying and addressing that problem (if it exists) will take a while.

Sorry I'm speaking to the bigger issues, not exactly what this guy wrote. I won't attempt to defend his precise reasoning.

Him - Cool, I think we agree on most points then. I wish I knew more about patent law though -- it's important stuff."