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Timothy Lee of the Cato Institute has an outstanding Op-Ed in the New York Times today titled A Patent Lie. He makes an assertion that I strongly share:
“But don’t software companies need patent protection? In fact, companies, especially those that are focused on innovation, don’t: software is already protected by copyright law, and there’s no reason any industry needs both types of protection. The rules of copyright are simpler and protection is available to everyone at very low cost. In contrast, the patent system is cumbersome and expensive. Applying for patents and conducting patent searches can cost tens of thousands of dollars. That is not a huge burden for large companies like Microsoft, but it can be a serious burden for the small start-up firms that produce some of the most important software innovations.”
Toss the trade secret doctrine into the mix and you are all set.