Tell me then how do you get around it? Short of hiring an IP attorney, small tech startups are screwed. Not to mention those bootstrapped startups that can’t afford to throw themselves into an IP war. Business is business just like a hamburger patty goes on a bun the same way at every burger chain.

Severely annoyed at process patents.

Although you can describe physical objects with math, it doesn’t mean they actually are math. Software is different. Now I could talk about software binaries being 1′s and 0′s, or Haskell programs and the Church-Turing Thesis, but since you introduced Nilay Patel into the discussion, let me simply quote him directly. At minute 33:00, on http://cnettv.cnet.com/live/reporters-roundtable/

Nilay Patel says:

“It used to be the patent office said you can’t write a software patent.  Software is just math.  You can’t patent math.  No software patents.  And the way patent lawyers got around it basically was saying, well software programs a computer, a computer is a machine, software changes the machine, so software makes the computer a new kind of machine.  This is the way they got around it.”  “Finally, 20 years later the Federal Circuit says wait, wait, wait, that’s ridiculous.  We shouldn’t do it that way.”

But you know, whether software is math or not is more of a philosophical question that seems secondary, compared to the overall impact on people’s lives and the future of innovation in our country.

Let’s analyze this thesis:

“Doing something unique and protecting it with a patent is exactly how a small company can build a business that competes with large companies and cannot be driven out of business because the larger company has more engineers.”

First, what if it is the large corporation that has the patent, and you want to build a business to compete with them? In today’s environment, it is the big players and NPEs who are amassing the massive patent arsenals.

Because software is an amalgamation, often involving dozens of features, hundreds of decisions, and tens of thousands of lines of code, infringement is all but guaranteed.

Small companies cannot afford to even search the hundreds of thousands of patents out there written in lawyerese, much less afford royalties on every possible aspect of the software that would be required if everything that is patented was enforced.

Every software company does a cost benefit analysis. Is it better to license a component from someone who has already built what we need, or spend the time and money to build it ourselves?

But software is much more than a single component. Software is a thousand decisions. It’s coding and creating and assembling it altogether. Software is an art. Which is what copyright is for, not patents. Software patents do far more harm for small companies in the reality of today’s fast-paced marketplace.

Finally, just because a larger company throws more engineers at a problem, in no way guarantees they are able to succeed. The market is much more complicated than that. For example, on one hand, Google has been rocking it with performance on Chrome, but on the other hand they’ve failed in social with Buzz and Wave, and Apple with Ping.

In fact, a small company often has an equal chance to compete by simply being better. For example, Firefox gaining over IE6. Microsoft over IBM. Facebook over MySpace. This is the great and unique aspect about software. The low barrier of entry. And the speed with which they can get to market.

Larger companies are often lethargic compared to the agility of smaller companies. Smaller software companies can push builds out faster, with far less bureaucracy and legacy support. Smaller companies have an incentive to create something different, because they are trying to create their very reason to exist.

This is the great thing about America. This is the great thing we must preserve. This is the reason, we must return to a marketplace free of software patents.