Put under a microscope, I think a lot of software patents would fall.Agreed. A patent is simply revealing an invention in exchange for exclusive rights over it. If the "invention" is already revealed or has been used in public, you can't patent it. It seems that many software patents in the last decade would fail this simple test. Presumably the patent office lacks resources to check veracity of patents and relies on courts to resolve the issue should patent enforcement be ever attempted.
I suspect a lot of this current chest-beating is to redraw the lines between competitors who know that many of these patents cannot be enforced, but who can win concessions if the other party has less appetite for legal action involving over 400 patents.
"... They ne'er cared for us
yet: suffer us to famish, and their store-houses
crammed with grain; make edicts for usury, to
support usurers; repeal daily any wholesome act
established against the rich, and provide more
piercing statutes daily, to chain up and restrain
the poor. If the wars eat us not up, they will; and
there's all the love they bear us."
-- Shakespeare: Coriolanus, Act 1, scene 1
