Professor Robert Merges has published a new article available at SSRN (see my review of the working paper here)- Software and Patent Scope: A Report from the Middle Innings, Texas Law Review, Vol. 85, No. 1627, 2007.

In the 1980s and early 1990s, it was commonly said that patents would severely damage the software industry. I review some of these early predictions, and hold them up to the light of actual experience... judged by overall industry revenues... product innovation, or ...vibrancy of new firm entry - the industry today appears quite robust. I conclude that the early predictions were wrong. This helps explain why we are experiencing what might be called the normalization of software patents.

Now, the frontier legal issues pertaining to software no longer center on whether it should be patentable in the first place. ..the interesting questions now concern the details and contours of patent protection for software inventions...

The overall theme of the Article is normalization: the legal system is integrating software into the fabric of patent law, and software firms are integrating patents into the competitive fabric of the industry. Proper application of enablement principles will help insure reasonable scope for software patents and thus assist this process of normalization.

Many criticisms of software patents are rather brash, and do not acknowledge today's level of innovation nor the fact that the competitive industry landscape benefits small-specialized firms. Software patents have stirred innovation, economic growth and technical advances. Software patents are beneficial, the free culture and free software movements on the other hand... they should join the rest of us.