“Before patents,” wrote author Paul Graham in an essay on the topic, “people protected ideas by keeping them secret. With patents, central governments said, in effect, if you tell everyone your idea, we’ll protect it for you. There is a parallel here to the rise of civil order, which happened at roughly the same time… Patents, like police, are involved in many abuses. But in both cases, the default is something worse. The choice is not ‘patents or freedom?’ any more than it is ‘police or freedom?’ The actual questions are respectively ‘patents or secrecy?’ and ‘police or gangs?’ ”

But the proliferation has created an ugly trade: so-called patent trolls, such as, allegedly, i4i, which EFF names as an example of a firm using patents not to produce goods but to extort licensing fees. The Supreme Court’s hearing on the Microsoft matter could produce a ruling that would reduce the burden on software defendants of proving a troll’s claims invalid.

Patent reform: It’s the judiciary, stupid
As these cases come before the high court, many are wondering whether the legislative patent reform sponsored by Sen. Patrick Leahy (initially in 2006) will finally come to pass. President Obama has publicly urged progress on the bill, which—for the first time in its history—has made it out of committee and is being debated on the Senate floor.

Lobbying groups representing IT interests (including Apple, Intel and others) have a dog in the fight. But few pundits are holding their breath. Part of the problem is the breadth of the bill, which contains roughly a dozen major changes to the patent system and, if passed, would represent the largest overhaul in 60 years.

“The patent bill is 100 pages long; I don’t know why they don’t go after it one part at a time so you don’t have to get every senator to agree on 100 different things,” said LoTempio, who has blogged extensively about the patent reform bill, among related issues, for years.

Ultimately, legislative reform may be moot, said EFF fellow Barclay. “The fact is, about six years ago, the Supreme Court started looking at a lot of these cases carefully, and then the Federal Circuit started looking more carefully. The result has been judicial patent reform.”

Cases such as KSR v. Teleflex made it easier to prove a patent obvious, Barclay said, while the 2010 Bilski vs. Kappos decision upheld the tricky concept of business method patents.

But is the judicial branch up to the challenge? “I think the Supreme Court is a bunch of old guys who don’t understand that everything is going to be virtual eventually. You’ve got these 80-year-old guys… I don’t know if they even have computers,” said LoTempio. The machine-or-transformation test maintained in Bilski v. Kappos, for example, will be increasingly strained in the future.

“Millions and millions of people make things that are used in millions and millions of ways,” said Justice Stephen Breyer in a hearing. “And I am worried about what kind of burden we are supposed to impose on them.”

It should make for an interesting year in software patent law.