A patent apology (sic)

There are plenty of reasons to dislike software patents: they stifle creativity rather than enhance it, they're used by rich companies to reduce competition (think Mi¢ro$oft and FAT, Apple and the WIMP GUIs), and so on.

Given this situation, can an employee in today's tech industry ethically participate in his company's patent incentive program? On one hand, it feels like a bribe: "Are you sure you don't believe in software patents? Here's $500 just to tell us about an idea that might be patentable, with thou$and$ more if we file a patent and a few more thou$and$ if the patent office issues one."

That is one point of view, and it's certainly respectable and consistent. I don't happen to hold it, and I'll admit right here that I'm biased, having received incentive payments (or "bribes" for you purists). But here's how I see it.

As I understand it, the main reason my current employer applies for software patents is a defensive one. In this regard, it resembles the attitude of US and Soviet defense strategists during the Cold War days: neither side wanted to be the first to use nuclear weapons, but neither did either want to be the victim of a "first strike." Though a patent "war" obviously wouldn't have the devastating human consequences of a nuclear exchange, unpleasant (potentially disastrous) financial consequences would certainly hit one if not both sides.

How does this work? Suppose someone at a fictional company Moon MegaSystems (hereafter "Moon") casts about for a way to make some money and considers suing another company Relational Equipment ("RelEq") for patent infringement. Moon owns hundreds, maybe thousands of software patents, which under challenge may prove to be invalid. But it takes time and money to challenge Moon's patents, so a potential victim of a Moon patent lawsuit may decide to settle -- to just pay Moon off -- rather than spend millions in court costs. But if RelEq itself has hundreds or thousands of software patents, Moon will think three times before suing RelEq becuase of the real possibility of a counter-suit.

Suppose a RelEq employee is concerned (as he should be) about his employer's financial well-being, but doesn't believe in software patents. What good does he do by declining to participate in his employer's software patent incentive program? What if every RelEq employee behaved this way, and RelEq's (defensive) patent portfolio became smaller, relative to Moon's? This does nothing to overturn the software patent system, and only makes RelEq a more attractive lawsuit target for Moon.

If we could vote on the policies of the US Patent Office (I guess it's the "PTO" actually) then I'd vote to overturn all software patents and refuse to grant any new ones. But given the current reality, I'll continue participating in my employer's patent incentive program. It's actually part of my job.