Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad

You're arguing that "in an FPGA" doesn't make it any more patentable than "in a computer" does? That seems like a reasonable argument.

But it's a big step to get the courts this far. (And, probably, another five years of fighting before this battle's really over.)

While somewhat arbitrary, it does make for a nice dividing line. Hardware based businesses require a lot more capital investment upfront and don't offer the economies of scale that software does.

More importantly, it's easier to convince the judges and politicians to strike down software patents.