I read an article earlier today, “By Definition, A Defensive Patent is a Bad Patent”, http://www.techdirt.com/articles/20110729/03340615311/definition-defensive-patent-is-bad-patent.shtml.

To be clear, I am a software entrepreneur; I believe in innovation, in collaboration, in sharing knowledge.  I like to think I come from the same philosophical mold as the original MIT hackers (in the original sense of the word) and I believe we are all better off when we expend our mental capital addressing meaningful and challenging problems instead of figuring out how we will protect our intellectual property.  I also grew up with the ideals of the patent system: that it was designed to protect, foster, and encourage innovation.  I have spent an astonishing amount of time trying to reconcile these viewpoints; and I have succeeded in realizing that it can’t be done.  At least, it can’t be done with today’s patent system.  So, I really understand the belief that patents are bad, evil, horrible things; that they represent the old order, the people who are willing to backstab society for their own greed.

Except that it isn’t that simple.

Samuel Clemens (aka Mark Twain) wrote that a country without a patent system was like a crab which couldn’t move forward (I’m paraphrasing).  The patent system is one of the baby-and-bath-water scenarios; we don’t want to be too hasty to abandon the patent system and find that we have destroyed an important economic tool for innovation in areas like chemical processes and drug research.  How about battery technology?  This is an important area of research which will greatly benefit society.  I, for one, am not willing to give up a system which may very well play a critical role in encouraging the development of fuel cells capable of replacing the internal combustion engine.

But “defensive patents”? Hmm…. Is there really such a thing?  Is that kind of like having a defensive ballistic missile (or a 1,000)?  Bottom line, there is no such thing as a defensive patent.  In fact, there is no such thing as an offensive patent.  There are just patents.  And people.  And companies.  And how they are used.

So, when I read, “A Defensive Patent is a Bad Patent” it makes my skin curl; it shouts to me that the author is addressing the wrong issue.  After calming down a bit (and putting my skin back in place), I realized there is a bigger issue undermining this article: the first-to-file system.  Imagine the following scenario:

Mr. Altman, an independent software developer, comes up with a new software system so innovative and essential that the creation of the first electronic spreadsheet pales by comparison… (Well, I have been told I’m a legend in my own mind!)  The new software catapults Mr. Altman to millionaire status in a few short months.  Six months later, still within the first year of publication, a well-funded and legally-sophisticated company duplicates the functionality of Mr. Altman’s software, brings a competing product to market, files several patents, and sues Mr. Altman for infringement of their patents.  The resulting lawsuit bankrupts Mr. Altman company.  

It’s undeniably fiction; and I unabashedly use my own name to make it personal.  But here is the point: irrespective of your opinion of the patent system or whether or not your software is worthy of a patent, the first-to-file system creates a 12-month windows where patent parasites (I think that is more realistic than calling them trolls) can copy your invention and legally steal your intellectual property by filing before you do.  Now, remember all those developers, myself included, who believe patenting software is a waste of time?  Load gun, point at foot, take a deep breath, and pull trigger…

I’m an innovator and an idealist; but I’m not a fool.  Please, for the sake of innovation, for the sake of software, for the sake of ideas, don’t turn your back on the patent system and ignore it!  It’s already lasted longer than you have, and it’s likely to outlive you.  How’s this for a conclusion: it’s time to adapt and evolve; it’s time to learn how to use the patent system to help modern software innovators.