Let’s Make Software Patents "Defensive Only"

In my quest to abolish software patents, I’ve been pondering "short term approaches" since I doubt the Supreme Court is going to wave a magic wand and make my fantasies come true anytime soon.

I’ve been hearing about something lately that bothers me a lot.  More and more companies are paying engineers a bonus to file patents.  Not "get patents" – simply generate patent applications.  The intended consequence is an obvious one – companies get to file more patents.  The unintended consequence is a particularly nasty one – lots of shitty patents get filed and the PTO has to wade through that much more garbage.

A friend of mine – who recently was "paid to file a patent" said he considered requesting that – if granted – the patent only be used defensively.  I asked him why.  He responded that he felt conflicted and thinks a lot of his peers feel the same way.  He didn’t think the patent was particularly valuable, useful, or valid.  However, he was reluctant to turn down the bonus that he was getting for simply filing the patent.  He didn’t view it as a good use of his time (or of his company’s time or money), but he realized that the patent system is motivating his company to file as many patents as they can.  He has little expectation that the patent will be granted, but he was happy to get paid the bonus.

I asked him what would make him feel better.  He surprised me when he said "My company should agree to only use the patent defensively if it is granted."  I asked him if he thought this was a unique perspective and he said no – he thinks many experienced software engineers are skeptical of software patents.  While they are skeptical, they understand the battle going on right now and realize the value of ever increasingly large number of patents for defensive purposes.

Wouldn’t it be interesting if there was a grass roots movement of experienced software engineers around software patents for defensive purposes only.