CSC 379:Week 2, Group 3

Software Patents

Overview

JPEG patent http://www.techdirt.com/articles/20051215/1210207.shtml
Are software patents evil http://www.paulgraham.com/softwarepatents.html
nuclear stockpiling http://www.techliberation.com/archives/042299.php

Patent Trolls

A "patent troll" is a company that holds patents without making any products off the ideas with the intent of using the patents to sue other companies that bring similar ideas to fruition. In almost all cases, the company that is sued, doesn't realize that a software patent exists, but in fact imagined the solution that it allegedly stole on its own. Patent Trolls essentially take advantage of the problems present in software patenting.

An important distinction about patent trolling as opposed to other patent litigation is that the patent troll developed no software using its acquired patent. This prevents the other company from using the typical nuclear stockpiling defense mechanism. This presents a small ethical quandary: is it ethical to sue a company that can not sue back? The immediate response is "Yes; the ability of the other company to sue back should not be under consideration." However, patent trolls are quite obviously using their software patents as weapons against an unarmed opponent. Nuclear stockpiling exists in software in order to counter problems with the patent office. Is it ethical for patent trolls to take advantage of patent office problems while avoiding the counter to the problem?

Since no software was developed, many times, the company being sued had no knowledge of their patent violation. However, the company being sued is at fault for not investigating their patent violations. Then again, it is extremely difficult to find software patent violations, especially when the patent holder produced no software. When a company sues another for patent violation, the supposed reason they are suing is that the violator stole the patent holder's idea. Without having knowledge that such an idea existed, how could the violator have stolen it? In most cases, the violator actually came up with the idea (or a similar one) on their own. This is called innovation, the very thing that patents were put in place to protect. Also, if something can be invented independently by many different groups, should it even be patentable? Using patents for the opposite of their purpose could in many ways be seen as unethical. In contrast, if the company is not a patent troll, by the fact that they previously produced a product or intended to produce a product, then the ethics become a little more fuzzy.

If we have agreed that the methods of patent trolling are unethical, then how about the practice of disallowing patent trolls to exist? In many ways this is a difficult law to put into place. Defining "patent troll" without hitting a few companies that have legitimate and unethical means, especially threatening companies whose purpose for holding patents is that of nuclear stock-piling. This would also encourage any company that is sued for patent infringement to attempt to defend themselves by defining the patent holder as a patent troll. Also, as previously stated, patent trolls take advantage of current problems with the patent office. Would disallowing patent trolls to exist simply serve as a way to ignore the real problem?

Links
Patent Trolling http://www.techdirt.com/articles/20070223/022129.shtml
Defining Patent Trolls http://www.techliberation.com/archives/039648.php

Nuclear Stockpiling

Since it is nearly impossible to write software without infringing on software patents, ...

Discussion Questions

• What are the ethical implications of having businesses devoted solely to acquiring, holding, and enforcing patents through lawsuits? What are the costs and benefits posed by allowing these “cottage industries” to exist?

• Often groups will not enforce patents through lawsuits due to the risk of their patents being found invalid. They have found that it is often more wise to acquire and hold patents as a deterrent to competition. These actions pose a risk to software developers that do not have patents of their own to balance the threats. Examine the ethical considerations of this practice and of the responses to counter patent litigation threats.

• Google Patent Search [1] has made it easier to locate patents to determine if a work to be created may infringe on an idea an existing patent covers. However due to the broad specifications included in patents (and that are sometimes encouraged by legal advisors to make patents more valuable), having quick access to patents still does not provide much peace of mind for software developers. Even operating systems adopted on millions of computers have been accused of infringing on hundreds of patents. What are some ethical considerations of developing software that likely infringes on patents?