Invalidating harmful patents
What this entry documents is not a solution.
This practice may be ineffective or useless in the long term.
ESP's position is that abolition of software patents is the only solution.
By invalidating the most harmful software patents, we can reduce some harm being done by software patents. However, this almost always relies on questioning the obviousness or the newness of patents and thus the invalidations don't create any precedent which would reduce the scope for the patent office to grant software in future. To do that, we need to invalidate patents based on subject matter.
If it is argued that the patent was granted for something that's not patentable (software, business methods, math), then the precedent will be very significant because it will narrow the scope for the granting and enforcement of software patents.
Limits to effectiveness
- Patents can only be invalidated if they are invalid to begin with.
- We can only invalidate a small number of patents. This can never solve the problem caused by the existence of tens of thousands of patents.
- Some software patent pests have a large collection of annoying patents they could use instead if their favourite patents were invalidated. For example, Microsoft accused TomTom of violating eight patents. The patents look invalid, but if they are invalidated there's still the worry that Microsoft will choose some other of its 10,000 patents to continue the menace.
- This can be difficult, expensive, and can take years. The Amazon's one-click shopping patent is an example.
Related pages on ESP Wiki
- Duds and non-solutions
- Prior art database - this is one method that can be targeted at invalidating specific patents
