crypto and public policy

On Software Patents and WMDs

Filed under: Policy December 3, 2004 @ 9:56 am

Here I am at the W3C meeting representing Creative Commons. Creative Commons is clearly catching on: whereas I had to explain CC to just about every W3C member at the last meeting 6 months ago, people now come up to me to tell me how much they like CC. I suspect the Firefox search engine hook has a lot to do with it.

And where copyright is concerned, techies quickly shift the conversation to patents, a fairly important topic to the W3C and the web community at large. It’s during one of these discussions that it occurred to me that software patents behave very much like weapons of mass destruction.

Software patents are used mostly for defensive purposes, as a kind of threat of potential action: software companies stockpile patents as quickly as they can but rarely make use of them. If a party chooses to make use of a patent against another party, the effect is usually devastating, especially if the other party chooses to countersue using its patent portfolio. The fines resulting from a patent infringement lawsuit are enormous (Eolas patent: $521 Million).

What ends up happening is that large software companies have an understood agreement that they will not sue each other for patent infringement, because the effect of suing and countersuing would be too much for either party to deal with. A sort of Mutually Assured Destruction by Patent Litigation, if you will. Of course, the small companies which have a much smaller patent arsenal cannot compete and are forced to negotiate to stay alive.

The situation is changing rapidly for the worse: Patent Litigation Mutually Assured Destruction assumes that if someone attacks you with a patent, you have the ability to strike back. That’s the “Mutual” in Mutually Assured. But what if the party suing you for patent litigation isn’t involved in software development of any kind? What if you can’t strike back? It’s what happened with Eolas. It’s what’s going to be happening more and more with Patent Firms like Intellectual Ventures. These companies have no software development activity, so they cannot be sued. Yet they have significant patent litigation activity.

In the world of WMDs, the equivalent is a terrorist group. While the Soviets would have been mad to use a nuclear weapon against the US, what does the terrorist group have to fear? They have no country against which the US could strike back. They hold the weapons, but no real targets to equivocate the Mutually Assured Destruction concept.

Certainly, it is too extreme to say that patent firms are the equivalent of Patent Terrorists. But it’s important to note how the precarious balance of defensive patent portfolios is about to be shattered by Patent-Only firms, in very much the same way that the precarious balance of MAD during the Cold War was shattered on 9/11.

There are legitimate uses to patents, but we’re about to enter an era where they will do far more harm than good. And even the large companies will realize that we’re in need of serious patent reform.

UPDATE: An astute reader notes that “Intellectual Property Terrorist” muddles the issue. I’ve edited the text to read “Patent Terrorist.”

1 Comment

  1. dilvie:

    Excellent post. I agree with the analogy.

    I’m generally opposed to intellectual property litigation. As a matter of fact, I prefer to give mine away for free. I’ve served up about 100,000 free music downloads. I even allow royalty free commercial use.

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