The Software Freedom Law Center and other free and open source software proponents say that software shouldn't be subject to patent law at all. After all, it does nothing more than "execute mathematical algorithms," and algorithms, on their own, are not patentable.

But software patents "snuck in" according to SFLC community liaison Bradley Kuhn, when the courts allowed for the patenting of business methods. "After that, people were easily able to draft patent applications such that software algorithms could be written as business methods," Kuhn says.

The SFLC, which usually opposes Microsoft's arguments in patent cases, filed an amicus curiae brief on Microsoft's behalf in a 2006 patent dispute with AT&T. And though other software attorneys and experts don't necessarily agree with the SFLC's reasoning, they do agree that the patent system is broken to some extent.

Matthew Schantz, a partner at the Indianapolis law firm of Bingham McHale, definitely agrees that the patent process is a long one that is often too expensive for underfunded startup companies. From application date to the first substantive feedback from an examiner, the process is often six years or more for software inventions, Schantz says. Fees, including attorney time, will run into five figures.

He says the U.S. Patent and Trademark Office is underfunded and, in the software examining corps, understaffed. "I would like for them to hire more examiners and pay them better... If people aren't learning to be good examiners and bringing their technology experience with them, I think it's hard for the Patent Office to develop examiners with solid backgrounds who are able to do the job efficiently." That, he says, would help catch up the backlog and speed up the process.

Moreover, if your invention is going to be worth something in five to seven years and beyond, then it will be worth spending the $10,000 now to file a patent application. Short of that, one may file a provisional application, which describes "how to make and use the invention," Schantz says. "It doesn't take long... the filing fee is just over $100... and that holds their place in the patent application timeline for a year." Petitioners can use that time to further develop their invention and raise the necessary funds for the full application, he says.

On the other side of the spectrum, IP expert Bruce Abramson says the problem is bigger than time and money. The problem is that software is subject to copyright law and patent law at the same time, and the two schemes work very differently. Independent creation is a defense to copyright infringement. The same is not true in patent law. Abramson explains, "Say you have patented software... Later, I independently write a piece of code that does the same thing... Several years later you're looking at this new open source software that suddenly came across your radar, and you say, 'Wait a minute, these guys are infringing my patent.'  You can then sue anyone who's using it for patent infringement."

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