There's been a lot of talk about "defensive" patents lately, as many companies in the tech industry try to acquire patents and claim they're only doing so for "defensive" purposes -- to act as a kind of deterrent to a patent nuclear war
. Of course, this only works against other companies that produce stuff. Patent trolls are immune to defensive patents, since they don't do
anything, and thus don't infringe on any patent (though, both Halliburton
have tried to patent patent trolling...).
We've described in the past some of the problems with thinking patents are okay if they're only used for defensive purposes. For example, while they may start out that way, they can later be used offensively
, which happens much more frequently than you might think.
But Julian Sanchez brings up a key point in this discussion, which is that a good defensive patent, by definition is a bad patent
. That's because the only way a defensive patent matters is if there's some likelihood that lots of other companies would infringe on it. As Sanchez explains:
This only works, however, if other companies are almost certain to have independently come up with the same idea. A patent that is truly so original that somebody else wouldn’t arrive at the same solution by applying normal engineering skill is useless as a defensive patent. You can’t threaten someone with a countersuit if your idea is so brilliant that your opponents—because they didn’t think of it—haven’t incorporated it in their technology. The ideal defensive patent, by contrast, is the most obvious one you can get the U.S. Patent Office to sign off on—one that competitors are likely to unwittingly “infringe,” not realizing they’ve made themselves vulnerable to legal counterattack, because it’s simply the solution a good, smart engineer trying to solve a particular problem would naturally come up with.
Of course, that describes a ton of patents out there. So broad and so obvious that tons of companies infringe. And those are, clearly, the worst, most economically damaging patents around. So, those who are seeking the best "defensive" patents are basically seeking the worst patents the USPTO has granted...
Oh, and should we mention now that Google just bought a bunch of patents from IBM
for "defensive" purposes?