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Patent ambush

Patent ambush is where a patent holder waits until a technology becomes popular, or until a product developer becomes rich, before launching a patent suit. The patents used in a patent ambush are often called "submarine patents" (although this term's original meaning was only for a certain type of ambush).

This problem exists in all patentable domains but it is particularly unjust in the case of software because the use of software is essential to almost every company, and distribution and development of software is very common (keeping in mind that developing a website is software development).

In some countries, the non-use of a patent could give a defence, known as "laches" or "equitable estoppel", to alleged infringers.

Old "submarine patents" definition in the USA

Until 1995, the US patent system contained a loophole which allowed patent applicants to keep their applications secret for many years by repeatedly filing modifications. These patents would then "surface" and product developers would be surprised with law suits over patents they never even had the possibility to search for or read. This loophole was closed in 1995 but the effects can still be seen in the term of certain patents, such as US6,185,539. Filed in 1991 (thus still governed by the pre-1995 regime), this patent was only published in 1997 and will only expire in 2017.[1] This is one of the patents which encumbers the MP3 audio format.

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Why abolish software patents
Why abolish software patents Why focus only on software · Why software is different · Software patent quality worse than all other fields · Harm caused by all types of patents
Legal arguments Software is math · Software is too abstract · Software does not make a computer a new machine · Harming freedom of expression · Blocking useful freedoms
High costs Costly legal costs · Cost of the patent system to governments · Cost barrier to market entry · Cost of defending yourself against patent litigation
Impact on society Restricting freedom Harm without litigation or direct threats · Free software projects harmed by software patents · More than patent trolls · More than innovation · Slow process creates uncertainty
Preventing progress Software relies on incremental development · Software progress happens without patents · Reducing innovation and research · Software development is low risk · Reducing job security · Harming education · Harming standards and compatibility
Disrupting the economy Used for sabotage · Controlling entire markets · Breaking common software distribution models · Blocking competing software · Harming smaller businesses · Harming all types of businesses · A bubble waiting to burst
Problems of the legal system Problems in law Clogging up the legal system · Disclosure is useless · Software patents are unreadable · Publishing information is made dangerous · Twenty year protection is too long
Problems in litigation Patent trolls · Patent ambush · Invalid patents remain unchallenged · Infringement is unavoidable · Inequality between small and large patent holders