Balance of Patent Terror

I’ve got a new article up at the American:

Technology companies have responded to the proliferation of bad patents by engaging in the patent equivalent of nuclear stockpiling. By obtaining dozens, hundreds, or even thousands of patents, a company can develop a credible deterrent against patent lawsuits: if someone sues it for patent infringement, it will be able to find a patent the other company has infringed and countersue. Vonage’s fundamental mistake was that it chose not to join this arms race. As a result, when Verizon sued, it was completely defenseless.

Software patents are particularly ripe for abuse because software is assembled from modular components. If the patent system allows those components to be patented, it becomes almost impossible to develop a software product without infringing numerous patents. Moreover, because of the complexity of software, it is often prohibitively expensive to even find all the patents a given software product might in principle be infringing. So even a software firm that wanted to find and license all of the patents relevant to its products is unlikely to be able to do so.

It’s not clear how any of this promotes “the progress of science” as required by the Constitution. Because of the high cost and uncertainty of the patent system, most software companies don’t even try to find patents they might be infringing. Instead, they sign cross-licensing deals with as many companies as possible, and they pray that the remaining companies won’t sue them before they’ve had time to develop a patent war-chest of their own. This is great for patent lawyers, but it’s not clear how anyone else benefits.

Readers of Techdirt may notice that I’m shamelessly cribbing from Mike Masnick, who apparently picked up the idea of nuclear stockpiling from MySQL CEO Marten Mickos back in 2004. It’s disappointing to find that their warnings are growing more accurate by the year.

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