I googled Lemley, and came across this discussion thread:

http://www.ipwatchdog.com/2011/10/09/defending-the-myth-of-t...

There are some interesting quotes:

"As for communism, it is a great analogy. Let’s look at one of those websites that promote “free love”: creativecommons.org. They are talking about “commons,” from which commune is derived. From the front page of their website: “Creative Commons helps you share your knowledge and creativity with the world.” Sounds like a statement out of Chairman Mao’s “Little Red Book.”

"Another great statement: “Creative Commons aspires to cultivate a commons in which people can feel free to reuse not only ideas, but also words, images, and music without asking permission — because permission has already been granted to everyone.” Again, sounds like communism to me – the entire commons/commune benefits from the labor of the individual. Moreover, since everybody has permission to use the “ideas, but also works, images, and without asking permission,” no money need change hands (i.e., the individual doesn’t get paid)."

-- This is the first time I've seen a direct comparison of CC to communism. The sneering tone is palpable.

"Separately from Lemley, your posts indicate an anti-software patent leaning. I grant that your primary legal stand may not be the same as the US legal stand, so some of that leaning can be graciously accepted. But my tolerance for that type of thinking is very short when it comes to US law. US law is explicitly different in the wide scope of patent eligible subject matter, and I firmly believe that US lawyers need to fight to protect that legal stand from the encroachment that many academics put forth in whatever sheepskin they dress up in."

-- Apparently the 'explicit' legal stand is the province of lawyers and not legal academics, whose wily and perverted encroachments are a blight and threat to the mighty and unambiguous law.

The Supreme Court, in a case called KSR: "…as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts."

-- This is interesting - if I'm reading this right, the Supreme Court apparently distinguished between "ordinary innovation" and inventions worthy of patent protection. A point rather in accord with software patent reformers' opinions

"He is not an engineer, and he hasn’t worked as an engineer. Had he, he (and SCOTUS) would have realized that ordinary workers are not particularly inventive. Most people, when their only tool is a hammer, treat all problems as nails. Few people will “look outside the box” to find a different tool for a problem that isn’t readily solved with a hammer.

"Had Lemley any real world experience, he would have recognized that “the expected skill of ordinary workers in the arts” generates very, very few inventions. Moreover, those inventions are the ones for which prior art is readily found."

-- This was a response to the previous Supreme Court quote. I don't know if the software world fits it - software engineers jerry-rig solutions all the time, I imagine, because the flexibility offered by the toolset is so great. Even more ironically, the entire ethos of the field is to re-use methods and libraries that have been discovered and refined already, relying on labor-saving through specialisation. So programmers basically only invent when there's a need or inclination to - and when they choose to, they can easily come to the same solutions that their fellows would if posed the same problem.

I've read pages of arguments between patent advocates and reformers on PatentlyO (an IP law blog), and it always leaves a bad taste in my mouth. There's too much acrimony, with more attacks on ideology and ad hominems from the patent advocates. It's too bad we don't have more overlap between lawyers and developers, more multi-talented judges like Alsup, more (any) legislators who also code.