CSC 379:Week 2, Group 3

Software Patents

Overview

Patent Trolls

Patent Trolling

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.

Unused Innovation

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?

Unknowing Violators

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.

Ban Patent Trolls?

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 ethical aims, especially threatening companies whose purpose for holding patents is that of nuclear stockpiling. 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
Defining Patent Trolls

Nuclear Stockpiling

Since it is nearly impossible to write software without infringing on software patents, many companies have taken to the idea of hoarding large amounts of software patents as a defense mechanism. These patents are not meant to be used to prevent other companies from stealing ideas, but rather to pose as a deterrent and prevent patent lawsuits against the stockpiling company. The basic idea is the same as with nuclear weapons (hence the name): if any company sues me for infringing on one of their patents, I can surely find one of my own that they have infringed upon and countersue.

Countering or Enhancing the Problem

Nuclear stockpiling is essentially a response to the problem that software patents are over-broad, non-innovative, and overlapping. Nuclear stockpiling deters a large amount of patent violation litigation caused by this problem. This prevents a large number of unethical uses of patents from happening. However, in the process of defending itself, a business is largely increasing the number of patents especially the ones that overlap. Also, now that many companies have participated in nuclear stockpiling, every company that hopes to survive patent lawsuits must do the same. Just as well, nuclear stockpiling, though mainly used as a defensive measure, can easily be used in order to unethically attack other companies. Since there is no difference between a defensive patent, a patent used to protect innovation, and a patent that is used to prevent innovation, nuclear stockpiling creates a much larger volume of patents that innovators must attempt to avoid violating. Also, though this method can deter unethical patent usage, it can also deter the correct and ethical usage of patents. People that have truly innovated and have had their work stolen by another company which hoards patents will be deterred from protecting their innovation by taking the hoarding company to court.

Links
Are software patents evil
nuclear stockpiling

Software Patent Infringement

The purpose of patents is to encourage innovations by protecting the ideas of an inventor from being used to compete with that inventor (for a limited time). Ethically, infringing on a patent would be wrong because it implies that you are stealing an idea from somebody else. However, there are many problems with patents, especially software patents that cause the ethical boundaries to not be quite so cut and dried. In software, it is nearly impossible to invent without violating a number of patents. Since this is the case, almost any software writing would be unethical. Obviously, software writing is not an inherently unethical process. Therefore, software developers are left with the difficult ethical decision of which software patents are ok to violate and which ones are not, regardless of the illegality.

Non-innovative Patents

If patents are used to protect innovation and it is nearly impossible to write software without violate patents, why don't the software developers simply not steal ideas? The problem is that software developers are typically not stealing ideas, but rather coming up with the idea themselves. When two separate groups of software developers come up with almost the same idea separately from each other, so separately that one group doesn't know the other group exists and has never seen the other group's work, then that idea should not be patentable. There is a clause in patent law that restricts obvious ideas or obvious extensions from an existing idea from becoming a patented idea. However, such unlawful patents are rampant in software. One well-known example of this was Amazon's 1-Click patent which was used to sue Barnes and Noble. The question is, is it unethical to violate such patents? Some would say that if you know that you are violating even a non-innovative patent, then you shouldn't violate it. However, this encourages ignorance by making it more ethical to violate unknown patents

Over-broad Patents

Patent lawyers will typically encourage more general terminology in patent requests resulting in a patent that a competitor would have a harder time inventing a similar system that accomplishes the same goal. However, some of this verbiage has become so general as to make the patent cover much more than has actually been invented. For example, Forgent used a patent to sue companies over JPEG compression even though this patent and Forgent has done nothing with picture compression. Such patents would prevent entire classes of innovation if they are to be taken seriously. Ethical considerations are very difficult for violating such patents because it is sometimes difficult to determine what has actually been invented.

Overlapping Patents

In many cases, multiple software patents exist to protect the same inventions. This means that people submitted software patents on innovation that they (hopefully) thought was new and unique. Even the patent office has no way to tell whether an overlapping patent exists. Therefore, the patent office continue to issue overlapping patents even though the existence of such patents is in complete disregard to the purpose of patents and the patent office. This presents a real ethical problem to those that would apply for such patents. The same ethical problems with whether one should violate a patent are present when one should apply for an overlapping patent. Most would say that applying for an overlapping patent is simply a wrong thing to do. However, there are a few cases where this ethical question is in more of a gray area. First is when the existing patent is an over-broad patent. Second is when the purpose of your patent is defensive and so is the patent you've overlapped.

Links
Amazon's 1-Click Patent
JPEG patent
Are software patents evil

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?