Glad to finally see someone who looks at the other side of things as well! I generally avoid IPWatchDog for the same reason reasons as Groklaw: too shrill, snarky and narrow-minded.

> Judges apparently think that you just tell the computer what to do and it requires no undue experimentation.

Yes, Fonar v GE is a ridiculous one when generalized, and I do wholeheartedly agree that the "enablement" requirement is very weak currently and a ton of patents don't meet it in my eyes. Take the PageRank patent, for one, often cited as an example of a good patent. It is very lacking in implementation details, so much so that a blogger set out to implement it and ended up with a bunch of posts complaining about all the undue experimentation he had to do.

But take the average case: how much undue experimentation is required for your average patent? How much undue fiddling would be required to implement, say, Twitter's pull-to-refresh, or the iPhone rubber banding patent, or the Google doodle patent, or the MS FAT patent? I think my point still stands: how many patents couldn't you implement just by reading them? (Also, keep in mind triviality of implementation is very different from non-obviousness.)

> They apparently haven't read the newspaper...

Like I said, tech media is not only clueless, it's deliberately misleading. Newspapers are merely anecdata, and worse, potentially biased anecdata [1]. Why rely on that when we have studies that tell you the data they looked at so you can find the flaws in them rather than accepting unsubstantiated, rageview-bait at face value?

> Also, we'd best not look at the steadily increasing number of patent cases, nor all of the goings on in Marshall, TX.

Actually, studies [2, 3, 4] did look at it and found no real increase. [2, 3] found that the AIA joinder rules, where previously a single case could have multiple defendants now must be individual cases, caused an inflation in lawsuits with no statistically significant increase in the number of litigants involved. [4] actually finds EDT is better than others with respect to plaintiff win-rates.

> Interestingly, widespread reinvention of a patent is not considered empirical proof of obviousness

A few points here, since this turns up often:

1. Reinvention many years later is not proof of obviousness. It simply means an idea has permeated widely enough to become obvious to others. A big reason the way US (and other) patent offices do examination, where they must support a rejection with enough prior art references, is to avoid hindsight bias.

2. There is very little "widespread" re-invention going on; what is happening is one product/project/company re-invents something(s) and that gets widely used. (Think Android, or the iOS SDK.)

3. Simultaneous independent invention could be considered proof of obviousness... Or it could be proof that two or more really smart people were working on the same problem at the same time, which has happened in "patent races". But at least at the PTO it happened so rarely that they changed to first-to-file.

> You're confusing "contains" with "is" here.

No, you're confusing both, the nature of software and the inventions being claimed. The software is what makes a machine do useful things, and those useful things are the inventions that are patentable.

> I've also seen patent lawyers try to do a reductio ad absurdam saying that software is hardware (read some of the Patently O comments…).

What they mean is, it's "equivalent", which is perfectly accurate. Also, please explain how software can exist without hardware. What's in your mind is steps to implement or recreate software, but it cannot exist without hardware outside your mind. Just like any other invention.

> Apparently they don't realize that software is information ...

How is "Software is information" different from "machines are metal"? Doesn't seem to be my logic that's broken.

> By how much of it is actually new.

Sure, but how do you determine that a patent covers something actually new?

> We can actually enumerate all of the programs that can go on a particular computer. It's the set of integers from zero to the largest number that would fit in memory (most of these are not useful, however).

I don't see the point, but I can trivially debunk this:

1) The order in which you "interpret" or execute those bytes gives you a completely different program. So if you can fit in 1GB in a high-end smartphone, the number of all possible programs approaches factorial(1e9). That's a number about 8 billion digits long, if Google serves correctly.

2) Now consider that you fill that memory up with programs that generate other programs, or variations of themselves. Something like, say, Conway's game of life. I cannot begin to calculate how many different programs that could generate.

These are absolutely humongous numbers, no different from the number of ways physical objects can be arranged. Now consider that only an infinitesimally small part of them are actually useful. I find that an argument to the patentability of software than against it.

> ... whereas the computer's properties are not altered by the information on it--the computer is still performing an instruction loop over the data it contains.

The computer's properties are not altered?!? It goes from being a heap of semiconductors to actually doing something! How is that different from a machine going from a heap of components to an useful implement?

And each program makes it do something different so each program changes the purposes of the computer, and so becomes a different tool! A simple thought exercise: you're on Youtube. Someone asks you what you're doing. Is your answer:

a) "I'm using the computer"

b) "I'm watching videos"

Interesting isn't it? Now repeat the exercise with games, programming, document editing. And then explain to me how running different software on the same machine does not change its function.

1. http://www.paulgraham.com/submarine.html

2. http://www.gao.gov/assets/660/657103.pdf (same as [1] in post upstream)

3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2346381

4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1597919