29 July 2011

Why Defensive Patents are a Contradiction in Terms

I've been writing about why software patents are bad from every viewpoint for far too long, but I'm heartened by the recent upswing in interest by others, less obsessed than I am, which has resulted in a sudden flood of really intelligent reporting on the subject (this, for example).

Usually those pieces are just catching up with what has been said by many of us for a while. Occasionally, though, you come across a post that is genuinely original in its insights, and makes you exclaim: "now, why didn't I think of that?" This is just such a post:

A patent that is truly so original that somebody else wouldn’t arrive at the same solution by applying normal engineering skill is useless as a defensive patent. You can’t threaten someone with a countersuit if your idea is so brilliant that your opponents—because they didn’t think of it—haven’t incorporated it in their technology. The ideal defensive patent, by contrast, is the most obvious one you can get the U.S. Patent Office to sign off on—one that competitors are likely to unwittingly “infringe,” not realizing they’ve made themselves vulnerable to legal counterattack, because it’s simply the solution a good, smart engineer trying to solve a particular problem would naturally come up with.

Of course - it's obvious when you think about it. And it means that these so-called "defensive patents" are a contradiction in terms: if ideas are useful as a defence, they don't deserve a patent, and if they truly do deserve a patent (in theory, at least), they will be useless for defensive purpose.

What a fab insight - one that takes another huge chunk out of the arguments in favour of patents.

Follow me @glynmoody on Twitter and identi.ca, or on Google+


Crosbie Fitch said...

This is the definition of ALL useful designs subject to patent:
"the solution a good, smart engineer trying to solve a particular problem would naturally come up with".

There's a lot senselessness about patent that only becomes obvious when you divest yourself of the premise that patents must incentivise technological progess (vs act as a parasite upon it).

As I've observed before, patents do not incentivise disclosure of valuable, non-obvious inventions that in the absence of patents would supposedly be kept secret. NB Society doesn't need to incentivise non-valuable and obvious inventions.

This is because inventors don't need to patent valuable, non-obvious inventions - they still keep them secret and exploit them. And, if they can't be exploited in secret, why keep them secret?

Not having the prospect of a patent doesn't make an inventor begrudge publishing socially beneficial knowledge that they cannot otherwise exploit.

Patents are simply monopolies - very attractive and lucrative to those who would lobby for them (and thus those lobbied to grant them, and those paid to prosecute them), but they produce no incentive other than their enactment, enhancement, extension and enforcement. Patents are pure corruption.

Glyn Moody said...

@Crosbie: well said

Sean said...

As an independent software developer, I may come up with a novel design for an app or service that nobody has yet thought of. The issue is not that I'd keep it a secret unless I could patent it, but a patent *would* be useful defensively if a large company (or a patent hoarder) saw my app or service and then ripped it off and patented it themselves. If I didn't have a defensive patent, they could then sue me or others.

Glyn Moody said...

@Sean: but realistically, even if you have the patent, a large company could grind you into the ground with legal expenses. patents are only useful to those with big legal departments and deep pockets...

BenK said...

There is a place for patents that an inventor has the ability to reduce to practice but not to bring to market. In fact, this is the main creative purpose of patents - to create a market in which production need not be scaled up and distribution need not be a solved problem.

There may not be a role for software patents, if the barriers to full production and distribution are minimal; but this does not mean there is no role for patents on other kinds of products.

Crosbie Fitch said...

Sean, the more fundamental issue is "why have patents at all?".

The argument that you need patents in order to defend against patents needs a little more attention.

A legislative grant suspending everyone else's liberty to compete with you in the marketplace is clearly a lucrative prospect.

The philosopher's stone sought by patent supporters is an argument that justifies this suspension of liberty - not an argument that demonstrates how lucrative patents (sometimes) are to those who have them.

Software engineers just happen to be those who most notice this suspension of liberty, that any algorithm or procedure they often independently re-invent is subject to a law that effectively prohibits its use.

The ingenuity of software engineers is matched only by the corruption and stupidity of profiteers, corporations, lawyers and legislators.

If there was more profit for the few than benefit to the majority in advancing progress rather than retarding it we wouldn't have patents.

It just takes far too long for the majority to wake up and recognise the corruption that monopolies are. Pity is, it's happened before, and will again - just after abolishing copyright and patent, it's highly likely that new monopolies will be legislated.

Glyn Moody said...

@BenK: well, the primary function of patents is to promote innovation. I don't think they're doing that any more, for reasons laid out here: