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Invalid patents remain unchallenged

For various reasons, when software patents are considered to be invalid, they're often not proposed for re-examination.

Case #1: Buying a licence is cheaper

One example is the Divine e-commerce patents. The patent holder asked each "violator" to pay less than a challenge would cost.

This problem is also explained by patent attorney Dan Ravicher:

"...the remedies, what happen when you infringe a patent, are critical to think about when you talk about these issues of patent policy. So, most software technologists think the penalty for infringing a software patent is too high. And even if they're not found guilty, the risk of being found guilty one day causes them to either chill their behaviour now or divert funds to build a "rainy day" fund to protect themselves, etc. There are also the litigation abuses, primarily from these non-producing entities. The cost of litigation is so high that patent trolls know, if they offer you a licence for $200,000, you're going to take that every single time, just like Chris said. The cost of defending yourself in a litigation is so much more than what they're offering you a licence at, that even if you think the patent is worthless, it's still economically wise to pay them a licence fee rather than take it to court."[1]

Similar is also described by venture capitalist Fred Wilson:

When that entrepreneur and the company he/she creates is hit with a baseless claim from a patent troll represented by lawyers working completely on contingency, it's a very big problem. As you can see, it can take a lot of time and money to fight and win.

The other option, and I see our companies do this all the time, is to pay a fraction of that $500k or more to settle the case and make the patent troll go away. That can be $25k to $100k in my experience. But that payment just funds the patent troll to go do it again and again.[2]

Case #2: There are just too many

Case #3: Not my problem

Case #4: Cost too high, outcome uncertain

See: NetApp's_filesystem_patents#Used_to_kill_tux2

Related pages on ESP Wiki

References


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