There is an interesting article by Paul Graham on software patents. For those not in the know: software patents are patents, just like any others, on inventions - but in this case, the invention is software - or more precise, 'algorithms'. An example of patented software is for instance the infamous 'one click' of Amazon - Amazon patented the concept of having a button on a website that allows customers to buy something immediate, as opposed to filling out an order form.
The problem is that many software patents are awarded to'inventions' that aren't really invention. Clearly, a patent cannot be awarded if there is 'prior art', but the patent bureaus usually do not have the knowledge to recognize such applications.
So we end up with companies having the patent on the hyperlink, or taking digital pictures. The interesting part is that Paul Graham says that software patents are not evil by themselves. He compares them basically with nuclear weapons - most companies will not use the software patents because their victims will retaliate by demanding hefty licensing fees for their patents. Graham claims that the evil is in patent trolls, companies that do nothing but earn income from litigation. Those companies have nothing to lose and will use their patents to extort money out of regular business.
I think that trusting the market for not abusing their patents is very naive. Legally it would be hard to setup, but wouldn't it be better to have a seperate patent categorie for software? And allow only those patents for which a viable alternative would be keeping the technology secret. Google or Yahoo could patent their search algorithms - if they wouldn't keep them secret like they do now anyway - but Tektronix wouldn't be able to patent 'digital pictures'. Mmmh. Would I be able to patent this idea?
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