Commentators have observed for years that patents do less good and cause more harm in the software industry than in other industries such as pharmaceuticals. Software patents create thickets of overlapping inventions, and are asserted in droves by patent trolls against innovative companies. Some have argued that software isn?t the sort of thing that should qualify as an invention at all. Others have pointed to the laxity of the Patent and Trademark Office (PTO), which they say has allowed too many patents on obvious software inventions. Still others say that the problem is the absence of clear boundaries, so that it is impossible to know whether a patent claim covers a particular product without going to court to get a ruling on what the patent means.
While there is some truth to each of these criticisms, the real problem with software patents lies elsewhere. Patent law purports to promote innovation by giving inventors the exclusive right to their inventions. In fact, however, modern patent law pays far less attention to what the patentee scope of the patent drafted by lawyers. And lawyers have a natural tendency to broaden those claims as much as possible in order to secure the strongest possible rights for their clients. The result, particularly in the software and Internet industries, has been a proliferation of patents with extremely broad claims, purporting to own everything from international electronic commerce to video on demand to emoticons to means of hedging commodity risk.
Mark A. Lemley, Software Patents and the Return of Functional Claiming,Stanford Public Law Working Paper No. 2117302, (2012)