Intellectual property and patents are a good thing, right? They protect your inventions and prevent your competitors from stealing your innovation and making money off of them, right? Wrong. That’s the theory, anyway, but the reality is considerably different. They don’t stop your competition from stealing your ideas and inventions, they only give you the right to go after your competitors in court for damages if they steal your inventions. And moreover, they make it easy for your competitors to duplicate your invention.
Remember, in order to patent an invention, you have to completely define the invention in enough detail for someone to easily reproduce it. (And it clarifies why many companies would like to keep as much as they can trade secret for as long as they can.) It’s like handing a car thief the keys to your brand new custom made Ferrari and asking him if he’d like a joyride.
But that’s not the worst part. Let’s say your competitor fully replicates your invention and starts selling it to your customers and making all the profit. Your only recourse is a lawsuit, and if your competitor is bigger than you, has deeper coffers, and more expensive lawyers, it’s going to be an expensive lawsuit. Even if you know you are in the right and there is a very good chance that you could recover legal fees in the award (after multiple appeals), you might not be able to afford the suit. In fact, even initiating a lawsuit might bankrupt you.
But this is far from the worst of it. The worst of it is that many companies file, or buy, patents not to protect their IP, but to prevent you from selling yours (and this has been going on for a decade as per SI’s classic post on how the patent pirates will plunder away. Since patent clerks are not experts in anything but the rules associated with filing patents, and the reviewers are typically not experts either, many patents that are much broader than they should be, and that actually patent innovations that exist in prior art as part, or all, of the invention, get pushed through by firms with big pockets and persistent lawyers. These patents are then used by companies, known as patent trolls, with no intention of actually developing or selling such products to go after companies with similar technology, like yours, for patent infringement, even if these technologies and companies are not actually infringing the patent. The idea is that, since you know how much a patent lawsuit will cost, you’ll simply cave and pay a small license fee to “license” the patent you are not already using. These patent trolls know that all they have to do to bring you to court (in Marshall, Texas) is make a reasonable sounding (not reasonably effective) case to a non-technical judge who will allow them to bring you before a jury. Now, it is true that the US is finally trying to put a stop to these trolls (who make the nasty trolls who live under bridges look like oversized benevolent gnomes) with a a new bill (S. 1137) that requires that trolls not only stipulate what patents are being infringed, but precisely how, before a case can be filed (and prevent filing of vague claims that are enough to get you on a Texas or Delaware docket on-demand) (and also requires that all claimants be listed and expensive discovery delayed until prosecution has progressed). It’s a good start, and will minimize the tens of billions of dollars of damage these trolls do every year (as these trolls do over 1 Billion in damage to the economy every two weeks as summarized in this post on how the US is still letting the patent pirates plunder away), but you know that, since the bill already passed the US Senate Judiciary Committee, the patent trolls already have their legal team looking for loopholes to use against you.
The reality is that the US is just not as smart as the EU Parliament, which quashed the Computer Implemented Inventions Directive 648 to 14 when it was introduced (and a significant portion of bullsh!t patents these days are computer related), and, for a big enough payday, the patent lawyers will become more and more creative and manipulative. Since the US allows business process patents (which, in the doctor‘s view, is a bullsh!t patent), this insanity is here to stay. So, you’re damned and you have to play the damnation game (and spend tens, if not hundreds, of thousands filing your own bullsh!t patent just to prepare a defense against the bullsh!t claims you know are coming if you get big, or threatening, enough).