> There is no software alone that you can run on a general purpose computer to cause it to generate thrust, or convert raw steel into an automobile chassis, or help the immune system to fight cancer.

And what about the algorithms that measure and control the thrust and the robots that make the chassis and compute the folding that leads to drug design? Much more often than you'd think, that is the crucial point of novelty and competitive advantage, and what many patents cover. Software eating the world and all that.

> ... And they are all things that, like other software, can be protected by copyright.

Functional things cannot be covered by copyright. If it's the functionality itself that is novel, no amount of copyright can protect it.

> On the other hand, the watch isn't the same thing. The formula that describes the timing of a watch mechanism is not a watch mechanism. A watch simulator is not a watch.

That wasn't my point. Simulation is not what I mean. A watch mechanism is essentially a series of cascaded counters. X "ticks" of one gear = Y "ticks" of another gear. It's an algorithm: if (m++ == 60) h++; You'll find such physical implementations of algorithms all over the place if you know where to look, especially in automation, from factories to toasters.

> You can patent a physical watch without patenting its "algorithm" ...

And that applies to most "software patents" too. Most software patents don't cover the abstract algorithm, they cover the application of that algorithm. Case in point, the patent in TFA: it didn't cover comparing a bunch of numbers to find another number, it covered comparing a bunch of numbers representing preferences to find a match between business entities associated with those preferences. You could very well use the exact same algorithm to find a match between a vacationer and a list of vacation spots and not infringe the patent. I'd say the judge's analysis in rejecting was a bit off: this patent is invalid because it's non-novel, not because it's abstract.

> The second is a refutation of the first.

No, but do you mean to say that the majority of software startups are doing technically innovative work? Heck, look at the much vaunted YC companies. How many are doing something beyond some variation of CRUD?

> If you take Microsoft, IBM et al as not doing anything particularly technically innovative...

I'm sorry, I live outside the HN bubble, so I completely disagree that Microsoft and IBM don't do innovative work. (Well, OK, these days it's mostly IBM Research, in case of IBM. In case of Microsoft, both MSR and MS products introduce inventions and innovations at a pretty fast pace.) Just because you don't see them doesn't mean they aren't there.

Sadly, the vast majority of the software industry is not like Microsoft and IBM. The vast, vast majority involves translating pre-existing business logic into code. And most software startups are not much different.

I agree, though, that most patents (not just "software patents"), are not really "interesting", but historically this has always been so. And all the hand-wringing you see here is not new either.

> It doesn't surprise me that the study found both of these. This is evidence that software patents are ineffective to promote innovation.

Well, then maybe we need to make it cheaper to file "software" patents and make them more powerful so they afford some real protection? :-)

>The real trouble is that software patents areharmful, because they entrench incumbents by creating patent thickets and facilitate the trolling of successful innovators by lawyers and failures.

There is no undisputed, convincing empirical evidence that software patents are harmful on average, other than tech media fishing for rage-views. For every paper saying software patents harm entrants, there's one saying the opposite (see "Software Patents, Incumbents and Entry" as an example). There are even studies suggesting that thickets helped innovation by centralizing licensing efforts.

Also: "Innovators". You keep using that word. I do not think it means what you etc. etc.

> If we get rid of software patents then VCs would need to find some other signaling mechanism to distinguish between startups, ...

1. It's not just in software that VCs look for patents. If you read that survey or other studies, or heck, watch Shark Tank, you'll see it's common in most industries.

2. If you drop the empirically unfounded assumption that all patents are bogus, a patent is a proxy for a multitude of signals that VCs find useful.

3. Studies show that startups with patents are more likely to have a successful exit. I don't know what better signal a VC would want to find.