Having software patents include source code is not a bad idea, but I don't think it would address the most serious problem. The big problem, in my view, is tha

Having software patents include source code is not a bad idea, but I don't think it would address the most serious problem. The big problem, in my view, is that the obviousness bar is just way too low. The reality we have today is, the first practitioner to think of a given problem can straightforwardly produce, using standard techniques, a solution to that problem, and patent it. It's considered an invention because the solution, let's suppose, didn't previously exist, but that's only because no one had attempted to solve that particular problem before. The patent teaches nothing new; another practitioner, unaware of the patent, coming upon the same problem, is likely to solve it in a similar way and with no great difficulty. I'm not saying all software patents are in this category, but I think the great majority of them are. And the reasons are not hard to find. First, software is, by its nature, a fantastically generative medium. All that is required to build a machine of any degree of complexity is to write down, in the mathematical formalism called "code", a sufficiently precise specification of how that machine should work. And secondly, as has been lamented many times, when the PTO first started to grant patents on software under orders from the U.S. Supreme Court (in Diamond v. Diehr), they had no software experts. Even now, as I understand, they tend to hire new graduates who have little industry experience. What's more, patent examiners have no incentive to reject patents on the basis of obviousness; that's not how their performance is measured. These two factors together are a recipe for disaster.