Mr. Love's arguments are illogical.
First of all, he tries to assert that small companies don't file patents, only big companies like Apple and Google; then he says that these big companies spent $15 billion in 2011 to buy their patents *from other companies!* To me that sounds like a great reason to file a patent, if you're a small company: so that later on, you can sell it for lots of cash to someone like Apple or Google.
Mr. Love mentions that most software start-ups don't file patents, but he does not provide any supporting evidence as to why, nor does he state how much less likely they are to file these patents than start-ups in other industries. Leonid Kravets reported on TechCrunch.com that 29.5% of general software start-ups file patents, while 38% of network hosting software start-ups do -- compared to 52% of general hardware start-ups and 65.2% of semi-conductor hardware start-ups ("Do Patents Really Matter To Startups? New Data Reveals Shifting Habits", June 21, 2012). He also showed that start-ups who do file patents are increasingly more likely to file additional patents. However only 15.9% of web start-ups file a patent in the first four years.
It seems pretty obvious that the type of software being developed is the key factor in determining whether or not a start-up will file a patent. These days, many software start-ups rely heavily on open-source software; their company may not even be selling the software itself, just the service of supporting that software or providing particular content via that software. This is particularly true for web companies who are more service-oriented and content-oriented and do not sell software; or for game companies who license gaming engines from other companies and are not innovating new methods of how a video game is made, but rather, are simply providing a new "flavor" of an existing type of game, relying on copyright to protect their game's unique aspects (3D models, music, textures, level design, etc.).
Mr. Love did not interview any start-ups or conduct a survey of start-ups to find out why they are not filing patents. He implies that even if these companies have something patentable, they simply don't think it's worth patenting anyway. However he provides no examples of companies who decided against patenting a patent-worthy software innovation, simply because they thought it wouldn't do them any good. I am certain they would be difficult to find.
If you are a software start-up who has actually developed a completely original piece of software that does something no software has really done before, in a unique way that is truly worthy of being patented, then why should your right and ability to patent that idea you worked so hard to create be taken away from you, just because some jerks decided that because it's written in code as opposed to made out of metal, therefore patents should not apply? Or just because some litigious companies abuse the system (something that should have a separate cure besides just getting rid of software patents)?
Also what is the problem with Apple and Google paying their attorneys a lot? Mr. Love also does not provide any information on what other major tech companies spend on their attorneys, such as General Electric. I highly doubt Apple spends more on attorneys than GE! Also the attorneys that Apple and Google are paying are largely US citizens who put that money back into the economy. Even with this, attorneys still have a hard time finding work in the US due to the fact that our government does not enforce the constitutional right to a fair trial in this country except in criminal proceedings. If you are a small business and get hit with a bogus tax assessment, it will cost more for an attorney to defend yourself against the vampire state than it will to simply pay the tax assessment, due to the fact that you are not afforded a court-appointed attorney.
I also think:
If there is a reason a software patent might not be a good idea, I would say it is the fact that by filing the patent, you must publish your entire idea, which makes it an easy matter for a programmer in China or wherever to copy your idea long before you have the opportunity to file a patent outside the US. And unlike hardware that must be physically imported, and therefore the importation of it can be blocked, software being sold from a website hosted outside the US would be very hard indeed to take action against, even if your patent is approved. All they have to do is change their website's name.
I also wrote:
Sean, imagine you're an inventer. You work a day job 44 hours per week. In your "spare time" you stay up late and slave away on an invention. It's something that's never before been made, which will enhance the lives of the people who use it. You personally recognized the need for the invention, designed it, tested it, made it, built it, wrote documentation and diagrams for it, and now you want to sell it. Now someone is telling you: your invention does not consist of physical items therefore I can copy it exactly and sell it and you have NO RECOURSE. Your patent application gets denied because there are no physical items involved in this thing, it is something that only exists inside a computer environment, or inside of virtual reality, or on a website, etc. How would that make you feel? I would say you had wasted your time inventing something that wasn't a physical object, and that you just got SCREWED.Look: if I invent something that is made out of metal and parts, all I am doing these days is simply designing it in a 3D CAD program and then sending all my digital plans to some company in China (or wherever) who basically just "prints out" the design. How is the printing out of that digital design any different than the display of a digital design on a computer monitor, in which the digital design is converted into a *physical* array of photons that hit your eyes, just like the 3D printer makes a digital design into a *physical* array of atoms that hit your hands? I think the fallacy here is that there is a difference between hardware and software. Yes, some inventions must take a certain form in order to function properly -- RAM must be a certain arrangement of molecules in reality, while a computer game must be a certain arrangement of electrons in RAM, etc. But it is fallacious to say that everything does not exist, at some level, in physical reality. Vlatko Vedral argues coherently in "Decoding Reality" that physical reality itself is essentially a quantum computer, which means that everything is software at a certain level. The problem is patent trolls, and you people want to solve this problem via draconian methods. The real solution would be to revise patent law to better define what aspects of software are patentable, and what aspects are not; and to establish a set of legal criteria for what a patent troll is, then make it a crime to be one.