Might Makes Right

It's a myth that patents serve to protect the lone inventor. In fact, patents favour large and bureaucratic organizations with deep pockets over the true innovators.

Unlike copyright, which costs nothing, patents are not available and affordable to all. The average cost of a European patent is around 30,000 Euros. The processing fee of the patent office is only a small fraction of that. The costly part is to get the help of a patent attorney, and to pay for the translation of the patent application into many languages.

For a large corporation, 30,000 Euros are no big deal. For an individual programmer, it's about as much as he would spend on a car (if not more), and 10 times more than he spends on his equipment (computer, monitor etc.). For a small or medium-sized enterprise, it's a very significant cost, especially if the company needs to file for many patents a year.

Even if a small company affords one or more patents, it still can't practically enforce them against a large corporation. Patent litigation is very expensive, and large corporations have in-house lawyers that defend them against claims. The biggest problem, however, is that large corporations own such vast amounts of patents that the small company has to fear devastating counterclaims.

The large corporation will look at the products of the small company and bring up as many patent infringement assertions as possible. Even if none of them are justified, the mere cost of defense can drive the smaller company out of business. Given the outrageous numbers of patents that various large corporations hold, the small company wouldn't even have a chance to check beforehand whether it has an actual conflict with any of those.

A small company can only enforce patents against a large corporation if it has no products of its own. If you have no product, then no one can hurt you by trying to take your products out of the market. If all you have is patents, and nothing to lose otherwise, then you can certainly start many litigations. It is, however, a very undesirable aspect of the patent system that it works better for non-producing racketeers than for truly innovative companies that create actual products.

Click to read why no one has a chance to avoid conflicts with software patents