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Defensive patent acquisition

(Redirected from Defensive patenting)

Red alert.png 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.

Not to be confused with Defensive patent pools.

Defensive patent acquisition is applying for or buying patents so that you can retaliate with counter-threats if you are attacked by a patent holder. These patents are thus not serving any purpose and are costing businesses a lot of money. A 1999 study in Japan found that 80.5% of patent applications were for defensive purposes.[1] If a company wishes to acquire defensive patents based on the work of its employees, the latter should ask for a non-aggression promise to employees.

Limitations to effectiveness

  1. Expensive.
  2. Doesn't work at all against patent trolls.
  3. Can lead to an "arms race" which can only be won if you have a similar sized patent portfolio as your opponent.
  4. When the owner has financial problems, the patents are sometimes sold to aggressive patent litigators (The Rockstar situation is based on Nortel's "defensive" patents)

Arms race - a useless expense

The comparison to an expensive arms race has been has been raised by many, including in the case Aerotel v. Telco (2006, UK):

An arms race in which the weapons are patents has set in. The race has naturally spread worldwide[...]

Attracts patent risk

According to the paper Patent Litigation Risk Characterization, the acquisition of certain types of patents increases the probability that you will be targeted by a patent suit.

Related pages on ESP Wiki

External links


Law Antitrust law · Free software exception · Interoperability exception · Loser-Pays rule · Patent review by the public · Raising examination standards · Independent invention defense · Reducing patent duration
Litigation Invalidating harmful patents · Suing makers of unfounded accusations
Licenses Patent clauses in software licenses
Prior art Defensive publication and prior art databases
Company practice Buying harmful patents · Changing company patent policies · Defensive patent acquisition · Insurance against patent litigation · Non-aggression promise to employees · Patent non-aggression pacts · Blanket patent licences and promises