As we both know, the point Blakely was making is that non IP focused industries are generally larger, healthier and more creative than industry segments with stronger IP protection.

And I agree with you that our patent and copyright laws are a way to spur innovation, not necessarily the way. In the US, our patent and copyright system is built on the Constitution (Article 1, Section 8, Clause 8), but there are likely plenty of ways to carry out this power.

Personally, I believe it is important to consider how much litigation is actually going on when debating the effectiveness of our current system. Even in light of cases like Apple v. Samsung, it turns out that only around 1-2% of patents are ever actually involved in litigation! http://www.patentlyo.com/patent/2011/12/patents-litigation-and-reexaminations.html

Patent laws are just another form of laws that we can change, modify and erase at our leisure, depending on what we perceive of as being best for the larger industry.

Check out this video on the fashion industry for an example http://www.ted.com/talks/johanna_blakley_lessons_from_fashion_s_free_culture.html.

I’d suggest that an orbit is simply a pathway and not a “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”

My understanding of pathways is that they are not patentable.

After all, the first interstate highways did not ever patent the paths the highways were placed upon. While a new pathway to a new destination might indeed become accessible (where it wasn’t before) by using a new man-made process which may indeed be patentable (as in the case of deep diving submarines able to explore more and more of the oceans) the paths themselves have always been there and are a part of nature.

And thus not patentable.