It's become fairly standard in Silicon Valley for companies to apply for a bunch of patents, even though the vast majority of software developers hate
patents and think they're a disaster that holds back innovation. Yet people are told time and time again that companies simply have
to file for patents, to put together a stockpile to be used defensively
. Companies that don't do so are mocked. Over the years Google has been mocked for not having enough patents, as has HTC and, most recently, Facebook. All of those companies eventually start ramping up their patenting effort -- all while insisting to the engineers that it's just for defensive purposes. But, even if that's meant to be the case, things change, and companies that swear patents are only used defensively either change management or are acquired, and suddenly those "defensive-only" patents are offensive weapons
(and I mean offensive in multiple ways here).
Former Yahoo employee Andy Baio reacted to the news of Yahoo's stupid patent lawsuit
against Facebook the way much of the internet world did: with pure disdain. But, in his case, it's personal. Even though (thankfully) none of the patents with his name on them are in this particular suit, he knows that Yahoo has four patents with his name on them... and he
very much regrets going along with the effort to patent things
. He talks about how after Yahoo acquired his startup Upcoming.org, they asked him to get patenting.
After we moved in, we were asked to file patents for anything and everything we’d invented while working on Upcoming.org. Every Yahoo employee was encouraged to participate in their “Patent Incentive Program,” with sizable bonuses issued to everyone who took the time to apply.Now, I’ve always hated the idea of software patents. But Yahoo assured us that their patent portfolio was a precautionary measure, to defend against patent trolls and others who might try to attack Yahoo with their own holdings. It was a cold war, stockpiling patents instead of nuclear arms, and every company in the valley had a bunker full of them.Against my better judgement, I sat in a conference room with my co-founders and a couple of patent attorneys and told them what we’d created. They took notes and created nonsensical documents that I still can’t make sense of. In all, I helped Yahoo file eight patent applications.Years after I left I discovered to my dismay that four of them were granted by the U.S. Patent and Trade Office.I thought I was giving them a shield, but turns out I gave them a missile with my name permanently engraved on it.
He insists that he'll never let that happen again, but it's a good lesson for others. Those who claim that they're only getting patents for defensive purposes have to recognize that those patents may not always be under benevolent control. You are creating a weapon -- a potentially broadly powerful and destructive weapon. And while you can hope it won't be used, that's rarely your choice in the long run.
The scary part is that even the most innocuous patent can be used to crush another’s creativity. One of the patents I co-invented is so abstract, it could not only cover Facebook’s News Feed, but virtually any activity feed. It puts into very sharp focus the trouble with software patents: Purposefully vague wording invites broad interpretation.
This is the world we live in... and it's a big, big problem for innovation.Permalink
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