Never Bring a Knife to a Gunfight

Via Techdirt, here’s another example of a pointless software patent battle. Creative sued Apple claiming that the iPod violated its patent on the concept of organizing music hierarchically (as if no one had thought of that before). Apple returned fire by claiming that Creative had violated four user-interface patents, and last week they filed a second suit alleging three more infringements of its patents.

What I want to know is: how do defenders of software patents explain Apple’s actions? After all, if those seven patents are valid, that means that Creative has been “stealing” Apple’s intellectual property in seven separate respects. There’s no doubt that if Creative had been violating Apple’s copyrights, say by using bootlegged copies of iPod software in their products, Apple would have wasted no time in suing them. Yet faced with an analogous situation with software patents, Apple has simply sat on its intellectual property.

Here’s my theory: software patents are little more than legal harassment devices. They’re typically so broad that any given product is covered by dozens of them, and so vague that it’s impossible to be sure which products are covered by any given patent. Large companies know that they’re violating dozens of their competitors’ patents, and that their competitors are violating dozens of theirs. They don’t sue because they understand that the result would be a zero-sum legal quagmire that could drown them both in legal fees.

Mike Masnick’s analogy for this is perfect: nuclear stockpiling. Everyone wants a big patent portfolio to use as ammunition in a possible patent war, but they understand the consequences of starting such a war with another big company would be suicidal for both parties. Creative launched a lone nuclear warhead at Apple; it’s about to discover just how painful a full-blown nuclear exchange can be.

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