By Definition, A Defensive Patent Is A Bad Patent

from the ending-the-myth-of-defensive-patents dept

Fri, Jul 29th 2011 6:36pm — Mike Masnick

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 and IBM 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?

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Filed Under: bad patents, defensive patents, patent trolling, patents
Companies: google, ibm, intellectual ventures

38 Comments

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Spaceman Spiff (profile), 29 Jul 2011 @ 7:07pm

Defensive patents and Google
Honestly, give how much these trolls are going after Google, trying to tap into its deep pockets recently, I understand why they are doing what they are doing. Until this entire swamp is drained, however; not much will change as far as getting bit by the 'gators... :-(
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Hulser (profile), 29 Jul 2011 @ 7:13pm

Obvious
If someone tried to patent a process that relied on the fact that defensive patents are only relevant in cases where a similar patent shouldn't have been issued because it was obvious, the patent would be rejected as too obvious, but only if the patent office worked correctly such that they rejected patents that were actually obvious.
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Kevin (PaxSkeptica) (profile), 29 Jul 2011 @ 7:19pm

Extremely Important Distinction
This write-up conflates, perhaps wrongly, the strategic value of a patent for defense and counterattack. Maybe I'm missing something here, but I don't see why an individual or even a company couldn't admit that the patent system is entirely broken -- basically concede every negative claim ever made about it on Techdirt -- and still go after a bunch of other patents just so other people don't buy them and misuse them.

Naturally, this behavior doesn't preclude the possibility that the patents may later change hands and be used against them or someone else. That's just the nature of the broken system, and it's by definition out of their control. (If their strategy is to hang onto the patents to prevent their misuse, then something has almost certainly changed if they relinquish them in this way, whether that's economic incentives, the company dissolving, a court order, whatever.)

By contrast, the incentives to go after particularly bad patents just because they're vague would be deplorable if the idea was to countersue (counterattack) any company that sued you on similar grounds. I think it's important, though, to remember that there are potentially honorable motives at work here. Just because someone buys a defensive patent (which is, yes, by definition, one that should not have been granted) doesn't mean they're supporting the broken system. Quite the opposite could be true.

Why blame companies for damage control when they had no say over the patent being issued and the legal reality of getting it overturned is so bleak? (And, as Techdirt has noted many, many times, it's sometimes easier to settle than to sue.)
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xenomancer (profile), 29 Jul 2011 @ 7:24pm

Promoting the tax of the useful arts
But patents always foster innovation! ... ya know ... after an idea's happened a few times ... and people have started to innovate on top of it ......... well, shit.

I think, until the evidence proves otherwise, I'll believe that cancer causes cell phones too [1].

[1] http://xkcd.com/925/
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William, 29 Jul 2011 @ 7:28pm

Meh
Really just a lame attack on Google. They have to fight the hand they're given and they lobby a ton to change patent laws. But until then they have to defend themselves and Microsoft, as you well know, would love to destroy apple and these patents will help prevent that.
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Anonymous Coward, 29 Jul 2011 @ 7:31pm

Whenever I read articles about patents peppered with "good", "bad", "offensive", "defensive", etc., I invariably discover arguments being pressed by persons having little, if any, substantive knowledge of the subject matter.
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Anonymous Coward, 29 Jul 2011 @ 7:52pm

Re:
Whenever I read comments about patents peppered with "good", "bad", "offensive", "defensive", etc., I invariably discover arguments being pressed by persons having little, if any, substantive knowledge of the subject matter.
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xenomancer (profile), 29 Jul 2011 @ 7:53pm

Re:
cool story bro
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Anonymous Coward, 29 Jul 2011 @ 8:12pm

All patents by nature are defense, they are taken to assure nobody else can infringe on your new "whatever".

What Google (and others) do is to patent certain things or to buy patents in certain areas that might at some point be used by others to either block their plans or add costs to their operations. They are defensive only that they want to be the ones controlling a given space, rather than having to pay to be in it through licensing.

Beyond that, there really isn't anything in this article except some good old fashioned bashing and some solid misinformation.
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Lawrence D'Oliveiro, 29 Jul 2011 @ 8:16pm

Since Most Patents Are Bad ...
... it follows that it makes perfect sense to try to use them defensively.
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Anonymous Coward, 29 Jul 2011 @ 8:18pm

Re: Re:
My education in this field of law began in the mid to late 70's, and will continue for many years to come.

And your education in this field began about when?

This is not to suggest in any way that a long number of years trumps a short number of years. It is to suggest, however, that persons who rely on ill-defined generic terms tend not to have a significant mastery of the subject matter.
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xenomancer (profile), 29 Jul 2011 @ 8:23pm

Re: Re: Re:
/troll
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Mike C. (profile), 29 Jul 2011 @ 9:06pm

Re: Extremely Important Distinction
tl;dr version

The system is broken. We all know it's broken. Accept it and start buying into the system already, would you?

/at least that's how I read it... :-)
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Atkray (profile), 29 Jul 2011 @ 11:12pm

Re: Re: Re: Re:
/tetchy troll
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Neppe (profile), 30 Jul 2011 @ 2:26am

Re:
Please be specific as to what constitutes the "solid misinformation"
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Anonymous Coward, 30 Jul 2011 @ 3:25am

Re: Meh
I have to agree with this.
The act of buying the patents in the first place is a defensive act (if they buy them, no one else can).
Personally though i'd like to see Google actually use the patents and go after patent trolls like Intellectual Ventures.
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Kevin (PaxSkeptica) (profile), 30 Jul 2011 @ 6:05am

Re: Re: Extremely Important Distinction
Accept it and start buying into the system already, would you?

/at least that's how I read it... :-)

Sorry, no. I don't see how that's a sound reading of what I said at all.

I said:

I don't see why an individual or even a company couldn't admit that the patent system is entirely broken -- basically concede every negative claim ever made about it on Techdirt -- and still [buy patents defensively]

What I'm suggesting is exactly the opposite of what you read. Companies aren't necessarily (though they may be) behaving badly just because they're buying shitty patents in order to avoid lawsuits. Just like they may not be behaving badly just because it's in their short-term interests to settle a lawsuit rather than enter a costly legal battle perhaps for the greater good.

Put another way, do we suppose that if Google or some other company didn't buy so-called "defensive" patents with the intent to keep them out of the hands of patent trolls that patent trolls would just disappear? That the system would just miraculously fix itself? I'm just not sure I understand the ire about this particular issue. I find that it's misdirected given the larger scheme of things, which we're all part of.
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Anonymous Coward, 30 Jul 2011 @ 6:20am

Re: Re:
The biggest piece of misinformation is that a "defensive patent" only exists as a negative. Perhaps a company like Google wants to do wireless whatever. They get the patents for it, and open them up for license without fee for anyone.

Was that patent defensive? By definition, yes, they have secured a space and have made sure others cannot block them. Yet, this defensive patent is used to expand a business, not contract it.

Was that really a bad thing?

The story is one dimensional and without consideration for any other view except a narrow "patents are bad, okay?" mentality. That is the biggest piece of misinformation possible.
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freak (profile), 30 Jul 2011 @ 6:29am

Re: Re: Re:
And without patents, they wouldn't have needed to spend money to expand a business. It would already have been expanded.

So you're saying they're undoing the harm of patents in a particular field by buying patents?
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Anonymous Coward, 30 Jul 2011 @ 7:42am

Re: Re: Re:
I liked the part where you don't actually say anything.
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Anonymous Coward, 30 Jul 2011 @ 8:43am

Re: Re: Re: Re:
My sole point is that "discusions" having as their starting point vague, undefined, generic terms are flawed and generally an exercise in futility unlikely to lead to an intellectually honest and thoughtful discussion.

I see this happen all the time with "software patents". How can a memningful and intellectually honest discussion about "software patents" take place when no one has taken the time to provide with any degree of specificity what the term actually means?
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Gene Cavanaugh (profile), 30 Jul 2011 @ 8:54am

A little history on "defensive" patents
Actually, this type of patent started with patents that were so obscurely written that it was unclear what was covered; then expert witnesses were retained (actually, "bought") to "explain" what they meant. The idea was to make the process so expensive that no one would want to encroach on your turf - bad? Of course, terrible - against innovation to protect a business model.
Relatively recently they "morphed" into obviousness; even worse.
Yes, ALL defensive patents are bad - so naturally, the vast number of "morons in a hurry" hear "ALL patents are bad" - which is definitely not true.
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Anonymous Coward, 30 Jul 2011 @ 11:08am

Re: Re: Re: Re:
Without patents, perhaps nobody would have bothered to create it to start with. Chicken and the egg.

They spent money to expand their business, and are making a choice to make an area open. That is up to them, you know, the patent holder.
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6, 30 Jul 2011 @ 4:17pm

I should make it clear Mike that "a defensive patent" isn't the same as "a bunch of defensive patents". Having a whole slew is prohibitive in a certain industry regardless of whether or not the other people infringe simply because of the effort required to determine if they infringe or not.
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Anonymous Coward, 30 Jul 2011 @ 5:09pm

Re: Re: Re: Re: Re:
No one is stopping you from helping.
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Anonymous Coward, 30 Jul 2011 @ 11:53pm

Re: A little history on "defensive" patents
The famous "moron in a hurry" test applies to trademarks, not patents.
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abc gum, 31 Jul 2011 @ 9:51am

Not just defensive patents, arguably the whole patent system is bad. I do not think I need to post any examples to support this assertion. Even in the presence of a few "good patents", whatever that means, one could argue that their existence does not justify out weigh the multitude of outrageously bad patents.
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Joe Smith, 31 Jul 2011 @ 11:15pm

Google
The Department of Justice is apparently investigating whether the use of the Nortel patents to squeeze Android out of the mobile market would be illegal.

I love it. You cannot take a single step down the road the Department of Justice is already traveling without implicitly saying that patents and their enforcement are not legitimate.
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staff, 1 Aug 2011 @ 8:00am

torturing
"defensive patents"

If you do not enforce your patent rights, you lose them. Surely, there must be something you can find to write about that would be more productive for you and less tortuous for the rest of us.

According to Thomas Jefferson the right of inventors and authors to their discoveries and creations is irrefutable. To deprive one of their property which is the anchor to their livelihood is to deprive them of life itself.

If large multinational infringer and Chinese interests don't pay you to write your rubbish, they should.

Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.
http://docs.piausa.org/
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Mike Masnick (profile), 1 Aug 2011 @ 10:35am

Re: Re: Re: Re: Re: Re:
No one is stopping you from helping.

That's this guy's MO. He insults everyone freely, implying without ever actually stating, that he knows much more than everyone else, and if only they had a dollop of his vast store of knowledge, they'd understand why only he understands all things patent-related.

But he never, EVER, delivers the goods. I keep challenging him to do so, just once. And the last time I finally got him to admit that he didn't have the goods. He was just making it up, as usual.
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Mike Masnick (profile), 1 Aug 2011 @ 10:36am

Re: Re: Re: Re: Re:
My sole point is that "discusions" having as their starting point vague, undefined, generic terms are flawed and generally an exercise in futility unlikely to lead to an intellectually honest and thoughtful discussion.

That *you* are unable to understand what others state clearly is your problem, not everyone else's.
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Mike Masnick (profile), 1 Aug 2011 @ 10:38am

Re: torturing
If you do not enforce your patent rights, you lose them.

You are confusing patents with trademark.

According to Thomas Jefferson the right of inventors and authors to their discoveries and creations is irrefutable.

Taking Jefferson out of context is sad.

To deprive one of their property which is the anchor to their livelihood is to deprive them of life itself.

Jefferson, of course, was abundantly clear that patents were not property.

But you ignore that part.
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Anonymous Coward, 1 Aug 2011 @ 3:37pm

Re: Re: Re: Re: Re: Re:
"Good", "bad", "offensive", defensive", etc....

Yes, those are some very well defined and highly specific terms all right...more than enought to begin comprehensive discussion.
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Mike Masnick (profile), 1 Aug 2011 @ 5:41pm

Re: Re: Re: Re: Re: Re: Re:
Yes, those are some very well defined and highly specific terms all right...more than enought to begin comprehensive discussion

Once again, you deride those who know more than you with vague insults implying that somehow you know more than them, but as always you fail to make a single concrete point. Because you can't. Because you don't have the goods.

Again, that you fail to understand what's being said is merely a statement on your ability to comprehend, not on what was said. Most intelligence people understand exactly what's being discussed.
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Anonymous Coward, 1 Aug 2011 @ 6:52pm

Re: Re: Re: Re: Re:
Except the patents cover concepts, not investment. No investment in the "invention" is needed to prevent the concept's fruition for decades. So now, rather than someone not bothering to create, you have many more companies unable to create. There's no escaping that.
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Anonymous Coward, 1 Aug 2011 @ 9:36pm

Re: Re: Re: Re: Re: Re: Re: Re:
Even in discussions among lawyers I see much unnecessary angst and heated comments on issues such as this. Each side truly believes they are making an important point, but the point gets lost as one person talks "past", and not "to or with", the other person. Why? Because each comments based upon unstated definitions of key words and phrases.

Until everyone is on the same page and in general agreeement upon the definition of the words and phrases being used, what subsequently transpires is a lost opportunity to engage in a thoughtful discussion.

This is not in the least a snide comment, and is not meant to be viewed as such. It is made simply to note the importance of having a common understanding of words and phrases as a predicate to a debate.
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xenomancer (profile), 4 Aug 2011 @ 3:03pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Until everyone is on the same page and in general agreeement upon the definition of the words and phrases being used, what subsequently transpires is a lost opportunity to engage in a thoughtful discussion."

We tend to call that the English language.

Do you speak it?

If clarification of specialized terms is causing you such hardship in goading others into proceeding through the course of a debate to your liking, either ask for clarification so as to direct the attention of all parties involved to their miscommunication, participate in the discussion yourself with a relevant position, or kindly locate a dark corner in which to loiter while spouting your amorphous observations of reality to yourself. Your passive removal of all specificity, as regarding the context of this forum, for which an adequate claim toward civilized debate might point seems indicative of an attempt to speak above your capacity to comprehend with respect to an evolving discussion.

Perhaps you should just say what you're trying to say directly and have the spine to admit when you are wrong, ignorant, or digressing. Saying nothing with as many words as you have is just disappointing.

"Each side truly believes they are making an important point"

Maybe you should try making one yourself.
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robert brenner, 1 Sep 2012 @ 1:05pm

wrong words
I received a patent in 2004, I was working overseas when it was issued. I just threw the patent document in a box with the rest of my junk.

2012, A friend was telling me about this new "patent guy" and said I should go see him. I did, he reviewed the patent and said "you have something here"

A month later I contacted a law group that specializes in patent infringement cases. I sent all of the documents and after one month I received a letter from the group telling me they were not interested.

I tried another group and the same thing. Now when I applied for this patent I used a local patent attorney since I knew nothing about writing the words to apply for a patent. I trusted this law firm. Seems the two firms noted that in the body of the patent the writer (lawyer) used the words "existing equipment" but in describing the 6 claims he failed to use those magic words hence with "existing equipment" I would have to supply all of the equipment which is not how it was supposed to work.

During conversations with the 2nd law firm I told them that I did not wish to be bothered with License agreements since so many were infringing on the patent and would just sell all rights to the highest bidder. There was talk about asking for 20 million dollars as hundreds of companies were infringing on my patent.

Of course now I have nothing just because of two little words and the original attorney told me how sorry he was.

Any comments or recommendations will be most appreciated.

Cheers
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