A recent spate of news articles and opinion pieces suggests that the patent system is broken. These publications contend that it is not well-suited for evaluating software patents and/or that the patent litigation surrounding the “cell phone patent wars” is a new development that should be addressed by fundamentally changing our patent laws.
For example, an article by Charles Duhigg and Steve Lohr, which appeared on Oct. 7 in The New York Times, criticizes patent owners for starting to use their patents as swords. These articles mistakenly contend that patents should be used defensively as shields, evidencing a fundamental misunderstanding of how patents are supposed to promote innovation and reward innovators, not only in our country, but in virtually every industrialized nation in the world.
Therefore, using a patent “defensively” as a “shield” is really a misnomer. The only way to use a patent defensively is by threatening to use it as a sword—the same way that nuclear weapons were used defensively at the end of the 20th century by both the United States and the Soviet Union: Each side knew the other side possessed the means for ending the world as we know it. They maintained an uneasy peace through their mutually-assured destruction capabilities. Each side maintained that it possessed its nuclear arsenal for defensive purposes. However, such “defensive” use was the threat of using those weapons as swords, not as shields.
Likewise, the only way to use a patent “defensively” is with the threat of a countersuit: “You want to sue me? I’ve got patents, I’ll sue you right back.” It is this stalemate that causes many large companies to settle their differences, rather than attack each other with their patent “swords.” However, from time to time, patent wars have erupted that are at least as epic as the current cell phone patent conflicts. Patent wars such as those regarding the drug tetracycline, seamless pantyhose and disposable diapers raged for years. The patent litigation system has evolved over the years and is adaptable to handle an extremely broad range of technologies and case sizes. There is no reason to scrap or upset the system based on anecdotal stories from disgruntled parties.