30 July 2011

"Good Defensive Patents Are Bad Patents"

Julian Sanchez | Good Defensive Patents Are Bad Patents

But now think about how defensive patents work. Companies aren’t buying them—or buying into the services of companies like Intellectual Ventures—because they provide otherwise unavailable technical insights. The point, rather, is to acquire (or have access to) a bundle of patents that any potential litigant who sues you is likely to be “infringing” in their own products. Like nuclear weapons, the point is not to actually use them—but only to be able to threaten to use them if anyone else should deploy theirs against you.

This only works, however, if other companies are almost certain to have independently come up with the same idea. 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.
This is an excellent point. It's so obvious in hindsight, but I had neither thought of it nor seen someone else express it.

To be honest, I tend to resist thinking about IP issues because I find the whole thing a muddled wreck.

The more I do think about it, the more I'm beginning to believe that our patent system works only within the particular context of the early Industrial Revolution. I have no idea what to do about it, but the system as it stands is a complete mess.

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