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December 4, 2004
Software Patents = = WMD
Typically, it's copyright infringers who get compared to/equated with terrorists. Here, Ben Adida of Creative Commons flips the script:
[Where] copyright is concerned, techies quickly shift the conversation to patents, a fairly important topic to the W3C and the web community at large. It's during one of these discussions that it occurred to me that software patents behave very much like weapons of mass destruction.
Software patents are used mostly for defensive purposes, as a kind of threat of potential action: software companies stockpile patents as quickly as they can but rarely make use of them. If a party chooses to make use of a patent against another party, the effect is usually devastating, especially if the other party chooses to countersue using its patent portfolio. The fines resulting from a patent infringement lawsuit are enormous (Eolas patent: $521 Million).
What ends up happening is that large software companies have an understood agreement that they will not sue each other for patent infringement, because the effect of suing and countersuing would be too much for either party to deal with. A sort of Mutually Assured Destruction by Patent Litigation, if you will. Of course, the small companies which have a much smaller patent arsenal cannot compete and are forced to negotiate to stay alive.
Certainly, it is too extreme to say that patent firms are the equivalent of Intellectual Property terrorists. But it's important to note how the precarious balance of defensive patent portfolios is about to be shattered by Patent-Only firms, in very much the same way that the precarious balance of MAD during the Cold War was shattered on 9/11.
There are legitimate uses to patents, but we're about to enter an era where they will do far more harm than good. And even the large companies will realize that we're in need of serious patent reform.
Bonus: Professor Lenz strikes back
at the "enemies of freedom" in a post on the kind of patents that kill -- not literally, but too close to be tolerated.
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