On Wednesday I attended the Brookings Institution's conference on "The Limits of Abstract Patents in an Intangible Economy." The conference was organized by software patent skeptics, so that perspective has been well represented. But I was struck by the dramatic differences between the views of lawyers on the one hand (who made up the majority of the panelists and audience members) and the handful of technologists on the other. The first panel focused on the economics of abstract patents, and included a mix of technologists, economist, and lawyers. All of the panelists spoke about the serious problems being caused by patents in the software industry and argued for dramatic restrictions on software and business method patents. The tone of the second panel, which focused on legal issues, was rather different. All of the panelists were lawyers, and although they acknowledged that the patent system had problems, and that these problems are especially serious in the software industry, their focus was on abstruse details of patent law. None of them supported explicit restrictions on software patents, and few seemed to feel any urgency about the need to rein in patenting in the software industry. I think this contrast is reflected in the broader software patent debate—patent attorneys and law professors who write about patent law are overwhelmingly in favor of patents on software, and prefer to argue about how to fine-tune patent law to get fewer "bad" software patents without invalidating the "good" ones. In contrast, a lot of computer programmers simply wish the patent system would leave them alone.
There are a couple of ways you can view this split. On the one hand, it's possible that the economists and technologists on the first panel are naive and don't understand the complexities of patent law. Maybe broad restrictions on patenting of software or other abstract inventions would have unintended consequences in other parts of patent law that only one schooled in the minutia of patent law can understand. On the other hand, the perspectives found on the second panel could be a reflection of the solipsism of the patent bar. Patent attorneys seem to have an unshakable faith that there's no sector of the economy that couldn't be improved by more patenting. I suspect that one reason for these different attitudes has to do with the role the two groups play in the software industry. Patent attorneys only interact with those parts of the software industry that participate in the patent system. When software engineers write useful software without seeking patents on it—a vastly more common occurrence—patent attorneys will, by definition, not be there. Therefore, patent lawyers are inevitably going to over-estimate the importance of patents to the software industry. In contrast, the average programmer deals with the patent system infrequently. For a lot of entrepreneurs, patents are basically a nuisance—they have to get some for defensive purposes, but they're not an important part of their business plans. For employees at larger firms, patents are basically irrelevant to their day-to-day jobs. No programmer starts a programming project by consulting the patent database.
As a consequence, the two communities have radically different views of how well the patent system is working. The lawyers certainly acknowledge that there's a problem, but they seem to find it incomprehensible that there could be a major American industry that's better off without patent protections. Techies understand that patents are not an important part of the software industry, and so they're much more likely to say that their industry would be better off without them.