404 issues from modernizr.js

I'm getting a lot of 404 issues from modernizr.js after subtheming.

This is because the drupal_get_path and theme_get_path are used to construct paths in the template.php (line 230 or thereabouts) for the drupal_add_js and css calls.

When subtheming, these files don't exist in your subtheme (usally the js and css is inherited from the parent themes .info file) so you get 404s. The best answer I can see is to adjust the drupal_get_path call on line 217 to refer to marinelli, and remove the theme_get_path from the add_js call on line 231 replacing it with the $path_to_theme variable (which looks like it should be done anyway).

Does anyone have a better idea?