Every day, it seems, we see a new lawsuit in which some obscure company (or in some cases, corporate megalith) sues a successful Internet venture over infringement of some broad patent. In many cases, the defendant quickly settles rather than fight a long and expensive court battle.

But is this what patents were intended for? When patents mainly applied to physical devices, they made some kind of sense. I build a new and novel mousetrap, and patent it. You make improvements to the design, and patent the improvements. Someone who wants to build a mousetrap based on your design has to pay both of us a license fee. Or they can come up with an entirely different design, and avoid paying any fee. But no one was allowed to patent the basic idea of a mousetrap.

This kind of competitive innovation helped drive the Industrial Revolution. Now imagine what it would have been like if the first person to patent a mousetrap could effectively prevent anyone else from inventing any kind of mouse-killing device. There would be less incentive to innovate, and we'd all still be killing mice with the version 1.0 mousetrap (at least until the patent expired).

Unfortunately, this kind of broad patent is exactly what's bogging down the software industry today. Rather than patent specific implementations of a general idea, companies have been granted broad patents on pseudo-code algorithms. I saw a patent for "merging user preferences" recently that was so common-sense and obvious that anyone faced with the problem would have solved it within 10 minutes, and in the way that the patent described. But now, anyone who wants the functionality described in the patent may be liable for a license fee.

Worse yet is the patenting of "business processes." For example, Priceline's "name your own price" auction model. If this isn't monopolistic behavior at its finest, I don't know what is. Imagine if I tried to patent "zero-down financing", or "buy one, get one free." But these new patents are precisely the same thing, patenting a way of doing business rather than a tangible technology.

In my opinion, patents should be used for concrete inventions. A more efficient transistor doping technology; a less polluting catalytic converter. If companies want to protect their software assets, the copyright laws offer abundant protection against actual copying of code or decompilation. But if you come up with the idea of a software DVD player, and someone else writes a better one, that's just healthy competition. Otherwise, we'll end up with a situation where the small innovative developers will be licensed out of business. I can see a day when even the most trivial applications will require hundreds of license fees, not because the developers who created them reused code, but because they performed basic operations like storing a Web bookmark.

Ironically, the SCO legal affair is one that (on a philosophical level) I can live with. SCO is claiming infringement of physical code fragments, not some overly broad conceptual patent. My argument with SCO is in their methods, not their claims.