"Copyright only provides thin and shallow protection. Patents provide deeper and wider protection," said Sachs, who both defends patents and challenges them, depending on his client. Saying software doesn't contain unique creativity because of its mathematical characteristics is to confuse, as merely ones and zeroes, the unique formulation in which code may be arranged. "Are you saying the works of Shakespeare have no creativity because they just use letters?" he asked.
"Humans innovate, agreed. And they've been creative throughout history without any kinds of patent protection," countered Brett Smith, licensing compliance engineer at the Free Software Foundation, the originator of the Gnu tools and General Public License frequently used for open source code. Innovation can take place on a much larger scale today than ever before, since nearly anyone can get a $200 computer and free languages and start writing code. They should be allowed to do so without looking over their shoulders, worried that someone with a patent portfolio might be coming after them for writing something that distantly resembles their patented code.
"Anecdotally, we have the most software patents of any society and the most vibrant software industry out there," said Sachs, scoffing at the notion that patents in some way restrained the production of software.
Patents encourage the production of software by ensuring its creators that they will have a chance to collect a return on their efforts. "Intuit told a second company that produced a QuickBooks look alike that it could buy a license from Intuit, get taken to court, or back out of the business. Intuit had patented its software. The firm chose to abandon the market, and Intuit thus protected its investment and small business franchise," said Sachs.
"The idea that people won't invest the effort without the ability to exclude others from using it and enjoying a big payoff from it isn't true," said Smith, citing Linux and other forms of open source code.
Patents now restrict creativity in software by making the price of entry for a new software company in the market so high. Someone wanting to enter the market legitimately can still be forced out by the cost of a threatened suit based on alleged infringement. "Established players can keep others out by making the cost of the game too high," Smith said.
A member of the audience suggested that the recent decision in the Bilski vs. Kappos case by the U.S. Supreme Court resolved the software patent issue in favor of more restricted software patents. But Professor Menell disagreed. It was argued on a basis of business processes, not software, and resolved nothing, he said.
Menell, who is director of the Berkeley Center for Law and Technology, is about to publish an article on the case in the Stanford Law Review: "Forty years of wandering in the wilderness and no closer to the promised land: Bilski's superficial textualism and the missed opportunity to ground patent law interpretation and return patent law to its technology mooring."