IAaIPL with a pretty big lawfirm, so I'll take a crack at this:

Why allow software to be patented instead of copyrighted?

There is no "instead." Currently you can obtain both: one for "original work of authorship fixed in a tangible medium of expression" (i.e., copyright), and one for the "new, useful, non-obvious" "process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" (i.e., patent).

Patents should be for THINGS (concrete stuff).

Well, I'm sure that one make the concrete industry happy, but I don't think it is a logical policy distinction.

Snark aside, there are a few easily articulated reasons. First, it really depends on what you mean by "concrete stuff" and "things." There are lots of "things" that aren't concrete (we usually say "tangible"). But interpreting what you mean by "concrete" from your subsequent bullet, I'll tell you that your conception of the dichotomy between patents and copyrights is almost 100% inverted. Patents are essentially stakes in the ground around an idea whereas copyright is the protection of the actual expression of an idea. As it relates to software, it's the difference between the idea for the code and the code itself.

Second, the statutory classes include non-concrete things such as processes. This is the "because the law says so" argument.

Third, it's not just tangible things because it's very difficult to draw the line between "concrete stuff" and the not-so-concrete stuff. If you look at the claims at issue in this case, they're not just the algorithm. It's a computer programmed to do the algorithm.

Think about it like this: a lever and a fulcrum are essentially the mechanical expression of using a physics equation for leverage. If you were the first person to think of how to apply the leverage equation to lift things, that would be quite an advance--I have assumed away the obviousness issues since the inventor is the first person to ever think of it and focused only on whether it would be patentable at all.

Copyright should cover TEXT (abstract stuff).

It's not the "abstract stuff" that is covered at all. It is the actual expression of the abstract stuff that is covered. You do not get a copyright for your incorrect ideas about intellectual property, only the expression of it.

Seems to me that these systems should exist to prevent others from stealing your specific work, the result of *your* labor; not to prevent others from engaging in the same line of business. Which seems to be the point of much of software patenting.

If you've ever been involved in a copyright dispute, you'd recognize how little protection that actually offers you. Furthermore, if you've ever been involved in a major software development project, the amount of time actually writing a specific piece of code is diminishingly small compared to the other time, effort and energy expended to get to that point: design, plan, etc.

Viewed in this lens, protecting only the expression is not a lot of protection since it's easy to copy the idea without copying the code.

i have tons of doodles and outlines for things i'd like to see on the market or share.

Your individual experience says little about whether patenting and copyrighting advances or encourages innovation. Patents and copyrights offer some additional incentives. Those incentives are not enough for you, clearly. You are not along, there is a whole world of trade secrets for innovations that would be under-rewarded via patents and copyrights.

But your argument is really a push for MORE benefits; not less. You would be unmotivated to contribute to innovation under the current system. The absence of that system would not provide MORE innovation from you.

This is a silly proposal.

Only individuals and not corporations may apply for patents.

Only the actual inventor can apply for and be granted the patent.

Well, in the US (unlike the rest of the world), patents are filed in the name of inventor. However, since patents and patent applications are like any personal property, they can be sold. The law really doesn't limit to whom a seller (the individual inventors) may sell his or her patents, but see my point below.

Patents cannot be sold, only licensed.

This wouldn't change a thing. You can structure a license to effectively be a "sale" without calling it a sale. [As an aside, there is a line of cases that distinguish between a license and a "sale of substantially all the rights" (aka an assignment)]. If there is some limit on what part of the whole you're allowed to license then people that intend to "sell" the patent will go right up to that line.

Also, this doesn't make much sense in the real world.

First, if you're a company that employs the inventor, you're going to be pretty annoyed when that inventor walks and takes the invention with him to your competitor.

Second, it also doesn't make sense if you're selling your business, going into bankruptcy, trying to use the patent as collateral for a loan, etc.

Finally, there are probably all kinds of weird tax issues with the license-only, no sale provisions.

...with the majority really just wanting a foothold for litigation riches.

Contrary to this popular belief, lots of patent applicants want a patent to start their business and many others want to have a portfolio for defensive purposes. I'll also throw this out there, most of the patent applicants are not the same party that ends up litigating the patent. Many inventors and most companies cannot finance patent litigation. Even if they can finance the litigation, they're too risk adverse to monetize it this way. There is a lot of risk in patent litigation. It's much easier to take a lowball license fee than it is to risk/pay for 1) reexamination and 2) actual litigation.

The most notorious group of patent litigators are usually companies that have acquired the patent for a nominal amount from the original inventors either through a bankruptcy, auction, or, occasionally, via a firesale when a company is in dire straights. Once they have it, they have little or no emotional attachment to the invention and there is little life left in the patent (term is about to expire) so they don't worry about making broad sweeping allegations of infringement for fear of invalidating the patent. They also don't fear invalidating the patent because they don't have any incentive to use it defensively since they have no products of their own.

Finally, I'll note that only the tiniest minority of patents ever see the light of day. Most collect dust on someone's shelf.

I'm not sure how this got moderated informative. The earliest filing date of both patents is Oct. 17, 1994! Your implementation is 7 years too late, and LiveConnect is about 3 years too late. You're welcome to try again.

To be rock solid prior art, you'd need something dated Oct. 17, 1993 or earlier.

Not true. This is an ISSUED patent; see the patent number: 7,617,530. You can also check its status in public pair (http://portal.uspto.gov/external/portal/pair):
10-21-2009 ISSUE.NTF Issue Notification 1
10-01-2009 IFEE Issue Fee Payment (PTO-85B) 1
10-01-2009 LET. Miscellaneous Incoming Letter 1
10-01-2009 WFEE Fee Worksheet (PTO-875) 2
10-01-2009 N417 EFS Acknowledgment Receipt 2
08-24-2009 NOA Notice of Allowance and Fees Due (PTOL-85) 10

I'll draw your attention to the first and last lines in the excerpt from the file wrapper.

That said, the claims DO NOT cover sudo.

In part, I think that the Redhat brief is consistent with this statement--the brief does not think that abstract ideas should be patentable (neither does the SCOTUS, PTO or Fed. Cir). If you read the brief carefully, it argues that patents on software are too vague to be useful and that the proliferation of vague patents makes the current system untenable. Compare that situation to, for example, patents that cover mechanical devices where the elements are discrete things that you can touch.

In patent speak, these are all problems under 35 USC Sec. 112. The problem for all of the briefs like this is that the issue before the SCOTUS is not 112, it's 101. Section 101 defines the "subject matter" of patents. It does not address the "quality" of the patents.

That said, a lot of people have argued in a number of places that really what's happening is that the PTO and the Fed. Cir. want to use 101 as a way to exclude poorly claimed inventions that step closer into the realm of mere abstract ideas and speculation than actual implementation.

But the SCOTUS does not take case to affirm the decision. So one of two things is going to happen: they are going to overturn the Bilski decision as too rigid or they are going to take the opportunity to rewrite the laws of 101 and 112.

Yes. Unlike copyrights, the government can (and does) own patent rights. When the government funds the work giving rise to the patents, the contractor (or university) will own the patent, but the government actually get a non-exclusive right to the patent. See Bayh-Dole, 35 U.S.C. Sec. 200 et. seq.

When Bayh-Dole applies, the owning entity then has an obligation to actually exploit the invention. If they don't the government has "march-in" rights that would let the government take ownership. Not that that's ever happened.

As with ANY laws, that's the case. But that doesn't answer the question. In the end, it probably doesn't matter since the warnings are going to be on everything. The only exception might be if the power to enforce is left with someone who has no intention on ever enforcing it.

Well, it depends on what you mean by "obligatory warnings and disclaimers." Many are not enforced by the law. Most are CYA warnings in hopes of providing evidence that the manufacturer told consumers that they should not put their cellphones into the microwave in a products liability case. Though, others are mandated by law: cigarette warnings.

As to the latter, there is some evidence to support the efficacy of warning labels where there is a serious gap in knowledge about the risks of the product to which it applies. But this proposal seems to require a generic warning be applied across huge swaths of products and advertising. But, in any case, I assumed that the warning would be efficacious for its purpose. The concern was more that it would become meaningless anyway because it would merely be applied everywhere just like the "this ad is paid for" statements in political campaigns.

Let's assume that this was even effective for the purpose. The text would become so omni-present to basically become meaningless. In one sense or another, every ad will somehow be "manipulated." Even if that means merely cropping the person's body to only have the head, blurring people in the background, etc.

The other issue is who is going to enforce that right? France? An individual on behalf of France? A private right of enforcement? In any event, a company will put that notice on any ad simply to avoid being sued/fined.