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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