Patendid on relvad

Often, patents are compared to weapons - for good reasons. When a gun goes over the counter, the seller and the buyer will always say that it's only for protection. In reality, many guns are used to bully, to rob and plunder, or even to wage wars. Patents can be used in similar ways.

Each patent is a means to prohibit that others apply certain knowledge for 20 years. That's why patents have ever less to do with true innovation, and ever more with the blocking of market segments. For instance, there are so many patents on all aspects of Internet telephony that it's almost impossible to write an Internet telephony program without "violating" a number of related patents.

If you're a software company, or just a software user, then patents can be pointed at you like a gun. The patent holder can shoot at you, or at the users of your software. Sometimes he'll do that right away. Usually he'll force you to pay protection money, or to stay out of a market he wants to own. Even if you're not sure whether the gun is loaded, you can't risk your life to find out.

A patent holder can be ruthless and selfish, and he has practically no legal obligations to society. If someone owns a patent, he can insist on his exclusive right. There is no requirement by the law that he has to be reasonable. It's like if you own a house: It's your choice whether you let anybody in. You don't have to admit anyone to your house if you don't want. You don't need to state a reason if you let some enter and keep others out. If someone is ready to pay for entering your house, then you can ask for 10 million Euros. It's unlikely that anyone would pay that amount, yet you may ask. There is no legal limit because you can always resort to your right to not let anybody in at all. With patents, it's just like that.

Actually, if you own a piece of land, you still have more obligations to society than a patent holder. You can't even buy property that would block a vital traffic artery in a big city. With patents, that happens all the time, and then it takes years and vast amounts of money to have that patent annulled, if that is possible at all. There is a whole "shop of horrors" of terrible patents that were upheld by even the highest courts, such as the infamous GIF patents. Even if you face a patent that you think you can get invalidated, do you have the time and the financial strength to embark on that long journey? In the meantime, your product may already be taken out of the market, and your customers will be concerned about your viability. Your revenue streams will be disrupted, so you may even win the lawsuit and still lose as a business (unless your company is very large).

A single patent can put an entire company out of business, overnight. It can happen to the most honorable company that never stole anything from anybody. The injustice is that a patent is an absolute right against everyone else, for up to 20 years.

Only because someone was first to register some idea at a patent office, no one else can implement the same idea without his permission. The patent holder can then decide if he gives anyone that permission. He may extend a license to some but not to others, and he can do so for any reason or no reason. If you tell him that you desparately need the license because otherwise your product doesn't work anymore, then that has no legal meaning. The patent holder can still demand any amount of money, and if you don't pay, he can insist on his exclusive right. So your choice is to pay, or he'll take your product out of the market.

It doesn't matter at all if you can prove that you had the idea totally independently. Even worse, that patented idea can be something as simple as a progress bar or a shopping trolley.

Click to read about the problem of worldwide patent inflation