Lehman reminds that it is the courts, not Congress, that determines the scope of patentable subject matter.

Twenty-four years ago the Supreme Court held that software could be patented in the landmark case of Diamond v. Diehr. Justice William Rehnquist's opinion observed that patents can "include anything under the sun that is made by man."

Lehman observed that patent protection has been a boon to U.S. companies.

It seems to me obvious that software patents have not harmed the growth of the industry in the U.S. In the more than 20 years since the Diamond v. Diehr decision, U.S. software companies have come to dominate the industry, with at least 80% of the global market

Lehman noticed that most infringement lawsuits are brought by "little guys", not major companies, which tend consider patents defensively, and as bargaining chips for cross-licensing.

A student of patent economics, Lehman contrasted the benefit of patent protection to a regime of trade secrets.

In the absence of patents, innovators protect themselves by keeping inventions secret, particularly those embodying source code. But, in the world of interoperability where your software has to interface with the software and hardware of many others, excessive use of trade secrecy slows the development of new products and services. Patents on the other hand fully disclose to all comers the inner workings of any new technology and permit the orderly sharing of that technology through licensing.

Lehman was puzzled at the intensity of the opposition to software patents in Europe, but thought the European Parliament's short-sightedness would benefit U.S. companies.

The failure of the European Parliament means that global investment in software development will continue to flow disproportionately to the U.S., creating more new jobs here.

Finally, Lehman considered the best patent reform to a better Patent Office, starting with stopping the robbing of the Patent Office piggy bank by Congress.