The weaponization of patents

Disputes in the tech industry are turning patents into weapons rather than vehicles for innovation

The U.S. Patent and Trademark Office fulfills a constitutional mandate to "promote the progress of science and the useful arts by securing for limited times to inventors the exclusive right to their respective discoveries."

“Under this system of protection, American industry has flourished,” USPTO's website states. “New products have been invented, new uses for old ones discovered, and employment opportunities created for millions of Americans.”

Within the tech industry, however, patents have taken on a new role. Rather than fostering innovation, they are being used as weapons, both offensive and defensive.

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It seems that the massively integrated field of IT is too complex to keep patents sorted out with one owner controlling the rights to an invention.

“Every technology company in the world likely infringes on somebody else’s patents,” said Michael Hyatt, CEO and co-founder of BlueCat Networks. “That’s just a fact.”

Usually, patent rights are not asserted in court against competitors, Hyatt said. When they are, it often is an effort to stifle competition, and the best defense is to arm yourself with a few good patents of your own and countersue.

“Intellectual property is complicated,” said Joe Chernesky, vice president and general manager of global licensing sales at Intellectual Ventures, a sort of arms dealer in the patent wars. “It’s unbalanced if only one side has a patent” in a law suit. So Intellectual Ventures runs a program called Intellectual Property for Defense in which companies that are being sued can shop among the firm’s portfolio of 35,000 patents and find one or two to that they can countersue with. “It’s a better dynamic if both sides are more equal,” Chernesky said.

That is the strategy adopted by BlueCat in an increasingly complex battle against Infoblox. Infoblox and BlueCat both offer Domain Name System, Dynamic Host Configuration Protocol and IP address management services and tools, and in December 2010, Infoblox filed a suit against BlueCat alleging that the Ontario company was infringing Patent No. 7,814,180 for a DNS server that had been granted to Infoblox two months earlier.

“We think unfairly,” Hyatt said. So BlueCat went shopping and, in June, announced a deal to acquire patents from Intellectual Ventures, promptly filing a countersuit against Infoblox alleging infringement of Patent No. 6,098,098 for a system for managing the configuration of multiple computer devices in addition to Patent No. 6,532,217 for a system for automatically determining a network address.

“We don’t want to be suing anybody,” Hyatt said. “We believe it is counterproductive. We’re just looking to leave the courtroom and return to the boardroom.”

That is unlikely to happen soon. Three days later, Infoblox filed its own countersuit seeking a declaratory judgment that it has not infringed the patents and, besides, the patents are not valid anyway.

The problem with tech patents, Chernesky said, is that unlike a mousetrap or a paper clip, there is not a one-to-one correlation between a patent and a product. Each high-tech product builds on work that has gone before it, incorporating others’ ideas. “The reality is products are using a lot of patents they don’t own,” he said.

Chernesky does not think the patent system is broken. It is evolving, he said. “Is it perfect? No. Is it improving? Yes.”

He might be right. But it is difficult to believe that this is what the framers of the constitution had in mind when they made provisions for patents to protect intellectual property. And it is hard to see how this “promotes the progress of science and the useful arts.”

About the Author

William Jackson is a Maryland-based freelance writer.

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Reader Comments

Wed, Jul 13, 2011

All Software patents should be KILLED by the USPTO. Period. If it doesn't equate to a physical, tangible piece of hardware, then it shouldn't be a patent. If you want to COPYRIGHT your software, feel free.

Mon, Jul 11, 2011 earth

There are two problems with the present patent system. First is that the rate of progress is now much faster than the 17 to 20 year (if you include the time it takes to get a patent) patent lifetime. Indeed, by the time a patent is issued the industry has moved on. An IPod version may have a two year lifetime. Assuming, there is something innovative to warrant a new version of a product, the patents that went into the old product should be placed into the public sector. A patent is a trade off between publishing how you do something so that the public benefits and the timeframe in which you get exclusive licensing rights. Once you move on, the patent right should be returned to the public by eminent domain. If once one has moved on a patent right is asserted then it is being asserted to stiffer innovation and is not promoting the progress of science and the useful arts.

The second problem with patents is that a patent should be for the process, not the results. Consider how many patents read “a process to [insert result set description here]” If the public can perceive a necessity, then the results of the fulfilled necessity are as obvious as the necessity. Take that to marketing. Any ’necessity’ created by prior art is obvious as a design goal. How your process fulfills that necessity, the process, isn’t. Design process makes the results a goal that can be solved by a variety of methods and to get a patent on the process, the process should be considered non-obvious. The non-obvious requirement of a patent is why results should not be granted a patent unless it is a really, really non-obvious result, e.g. has no “prior art’ within nature. “Moving picture shows” had prior art within nature, sight, though the process for creating one did not. Many patent suits revolve around the results and results by a different method should not be considered an infringement.

Mon, Jul 11, 2011 PL Bain Wash DC

I wish articles like these could provide a little more. Too much of journalism consists of criticism, sniping, and handwringing, without going further. Example: Is there a correlation between IT industry activities and other industries. Is it not just a norm in the last century or so that patents are used as weapons? For instances, check the behavior of the automotive, agriculture, or pharmaceutical industries. Is there a larger issue?

Mon, Jul 11, 2011 Bob Gaspirc Toronto, ON, CA

The world of geomatics has many innovative and well known models and processes. Is there a listing summarizing which municipal/local government practises have been patented?

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