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

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.

Disallowing the Existence of 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 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, 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 http://www.paulgraham.com/softwarepatents.html
nuclear stockpiling http://www.techliberation.com/archives/042299.php

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?