Trade Secret argument invalid for ui/design patents.

So this Nilay article was recently reposted

http://www.theverge.com/2011/08/11/broken-patent-system/

and one section had an obvious logical flaw as an argument of why it was Soooooo necessary to grant patents to ALL of software.

I don't think it's possible to release a software UI/design as a trade secret. As soon as you release it, the idea is out there. The page rank comparison was a more substantive and defensible example of a software patent, there is a much larger element of a "secret sauce" that goes into that kind of software development.

With a design patent like slide to unlock or the scroll bounce, you can use a thousand different processes and methods to get to the same effect and function, because the function is not a process like a ranking system, it's obvious to a 3 year old what it does as soon as they see it.

So the trade secret argument for propping up software patents has an entire class of applications where it is simply invalid as a reasonable rationale for upholding/enforcing patents, particularly when it comes with the power to force an injunction to block a competing companies wares from being sold.

The only thing left standing I suppose is an argument that says people will not bother trying to come up with ui designs period if they can't be afforded monopoly powers of the idea. This seems to me a weak counter. Whether google or apple gets monopoly powers of a ui element or not, it is still in their interest to create the best user experience possible on their platform.

So, to recap, you don't need perform the "necessary evil" of granting legal monopolies to spur the release of a software ui/design idea to the world rather than keep it a trade secret (because the idea is known as soon as it gets released).

But I suspect many, possibly Nilay, would want to preserve such a system even when the good of the ideas being released does not require monopolies in all software cases. Why? I think the primary motivator is that they want to preserve the capacity of people to collect rents on as many of their ideas as possible.