We need a new legal object, a "software work." Software does not fit in the shoes of a legal object designed for machinery, tools and appliances. It also does not fit the shoes of a legal object designed for recordings, music and books. As computer hardware becomes more robust, software is going to become even more difficult to fit into either the category of a patent or a copyright.
Patent law is already flawed within its own domain. Entities file patents without any intention of bringing anything to market. Instead, they sit on them until someone infringes, and then sue them. That is all they do. Patent law needs to change to put the "patent trolls" where they belong... patentless.
Copyright law also has need of reform because the Internet has made "fair use" a joke and computer technology has made enforcement difficult. Computers can use adaptive software applications to "invent" songs. Who is the author? The computer. Who owns the copyright according to current law and international treaties? The author...for life plus 50 years. What is the expected life of a computer? See what I mean?
Patents also have similar problems. Computers can use adaptive technology similar to the way a human brain works to derive optimum structural designs. Through artificial intelligence, computers can program themselves to do things like drive vehicles, prospect for oil, forecast weather, discern probable pathways for hurricanes and discover sub-atomic particles. OK, so who designed the software? The computer. Who is the author of the software? The computer. Then who owns the patent according to current law? The computer. Can a computer assign a patent to a human being or corporation? No, because it has an IQ of zero. That is why we call this phenomenon "artificial intelligence." It isn't real. It just Darwinian.
So why hasn't the legal profession addressed this issue? No one knows how to define a software work that covers all of the possibilities. Also there is too much money to be made in litigating the status quo, aided and abetted by creative legal mischief.
The answer to your patent question depends on the victim. Microsoft could build a product that is so good, people want to buy it. They choose instead to squeeze anyone in the particular field to make more room for their semi-developed product. What they should do, from a technology stand point, is make the products they already have better. I think they should not be allowed to bring a patent suit until they have paid the i4i judgment.
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