The second point you raise about having to interact on a daily basis with lawyers is valid but not unique to software. We might all benefit from empirical data on whether patents are a net gain or net loss to innovation, coupled with research to identify the significant traits of the industry that determine what effect patents are likely to have. For example, patents might slow development in rapidly moving areas such as software in which the industry norm is to protect trade secrets, or it may be that the effort we put into preventing reverse engineering and guarding our trade secrets is more expensive than having the lawyers working with the programmers. We might have a gut feeling on this question–I certainly do–but too much legislation in this world gets made on gut feelings that turn out to be wrong.

The second point you raise about having to interact on a daily basis with lawyers is valid but not unique to software. We might all benefit from empirical data on whether patents are a net gain or net loss to innovation, coupled with research to identify the significant traits of the industry that determine what effect patents are likely to have. For example, patents might slow development in rapidly moving areas such as software in which the industry norm is to protect trade secrets, or it may be that the effort we put into preventing reverse engineering and guarding our trade secrets is more expensive than having the lawyers working with the programmers. We might have a gut feeling on this question–I certainly do–but too much legislation in this world gets made on gut feelings that turn out to be wrong.

Non-programmers don’t understand the problem in its original domain, so do what mathematicians do: Transform it to a different domain:

“Inventions” which can be communicated by prose that cannot reasonably claim copyright protection are inherently obvious:

Hey, how about storing a shopper’s payment and shipping preferences as a cookie?

Even if I claim copyright on the above prose, you can get around my one-click shopping “invention” by phrasing it as:

At Tim’s E-store, we let you store a standing “Our Reference:” in your electronic purchase orders on our system, using your browser’s cookie system

There are virtually infinite different, non-copyright-infringing texts that convey the one-click idea with enough information for a practitioner in the art to duplicate. So it’s obvious, as is, for example:

We’ll ship a DVD to the customer, and the envelope will be reusable for the return trip. We’ll charge a flat fee per month for unlimited DVD rentals.

(Ironically, it seems the latter “invention” precluded the “inventor” of the former from offering a competing service in the US. They did, in the UK, since the DVD business model patent was probably invalid. As was their one-click patent. Sweetness.)

On the other hand, I can’t see how any prose that describes the IDEA encryption algorithm can be rephrased without producing a version that, for copyright purposes, is 100% derived. Neither I nor the lawyer are practitioners in the mathematical art, but we don’t need to be to understand that the mathematics in the description is what makes the invention work

So, again, it’s not algorithms versus prose. It can be attacked, however, as the copyright relationship between two pieces of prose.

Making the lawyers understand that is left as an exercise to the reader

‘better than that pizzaright analogy you used one time though. Oh man…

Non-programmers don’t understand the problem in its original domain, so do what mathematicians do: Transform it to a different domain:

“Inventions” which can be communicated by prose that cannot reasonably claim copyright protection are inherently obvious:

Hey, how about storing a shopper’s payment and shipping preferences as a cookie?

Even if I claim copyright on the above prose, you can get around my one-click shopping “invention” by phrasing it as:

At Tim’s E-store, we let you store a standing “Our Reference:” in your electronic purchase orders on our system, using your browser’s cookie system

There are virtually infinite different, non-copyright-infringing texts that convey the one-click idea with enough information for a practitioner in the art to duplicate. So it’s obvious, as is, for example:

We’ll ship a DVD to the customer, and the envelope will be reusable for the return trip. We’ll charge a flat fee per month for unlimited DVD rentals.

(Ironically, it seems the latter “invention” precluded the “inventor” of the former from offering a competing service in the US. They did, in the UK, since the DVD business model patent was probably invalid. As was their one-click patent. Sweetness.)

On the other hand, I can’t see how any prose that describes the IDEA encryption algorithm can be rephrased without producing a version that, for copyright purposes, is 100% derived. Neither I nor the lawyer are practitioners in the mathematical art, but we don’t need to be to understand that the mathematics in the description is what makes the invention work

So, again, it’s not algorithms versus prose. It can be attacked, however, as the copyright relationship between two pieces of prose.

Making the lawyers understand that is left as an exercise to the reader