## The Benefits and Costs of Software Patents

A patent can be a great thing to have. You invented something, you applied for a patent, the patent was granted, and now you can use the rights assigned by the patent to ensure that you receive just rewards for your efforts.

But there is a downside to patents, which is that some people don't like patents. Especially software patents.

For example, you might serve notice to an infringer of your patent, and then several hours later there are people all over websites like Twitter, Reddit and Hacker News saying how much they don't like you. Or your patent.

Of course it's not the purpose of a patent to make people like you. But there are things that you can do to reduce the hate.

## Common Mistakes

There are two common mistakes that many patent-holders make when attempting to increase the "feel-good" factor about their patents. In this article I will describe these mistakes, and I will also explain how to avoid them.

For the purposes of explanation, I am going to assume that you, the inventor and patent-holder, are the CEO of a hypothetical corporation Under-A-Bridge NPE Ltd, which has recently been granted a patent on your invention of using a <video> tag in HTML. Of course for the patent to be any use to you, it must have a priority date which precedes any public discussion about the possibility of having such a tag in HTML.

### Mistake 1: Pretending to "Practice"

A common criticism of patent holders is that they are "non-practicing entities". Many patent-holders respond defensively to this criticism by suggesting as strongly as possible that they are indeed practicing entities, or that at least they have the intention of becoming a practicing entity.

So, for example, you might write something like the following on Under-A-Bridge NPE's website:

> Under-A-Bridge NPE, bringing the future of web video to your browser.

However, if UAB NPE has not actually implemented the functionality of an HTML <video> tag, then critics may see through your attempt to suggest otherwise.

Another approach is that UAB NPE may actually have a browser plugin that implements the processing a <video> tag. If this browser plugin is indeed a really great <video> tag handler, which everyone in the world uses, then that's just great. But if the plugin is somewhat crappy, and no one is going to use it until a cease-and-desist order from UAB NPE gives them no choice, then this approach may attract only further criticism.

Implicit in the expression "non-practicing entity" is the assumption that somehow this is wrong – that it is immoral to have a patent and only license it for other companies to commercialise. But this assumption contradicts the very basis of the patent system, the whole point of which is to reward inventors for inventing.

Rather than defensively responding to this assumption, you should confront it directly, and show that you are indeed proud to be an inventor that holds a patent for your invention. On your corporate website, say something like:

> Under-A-Bridge NPE, our mission: to invent, so that others may practise.

### Mistake 2: Assuming and/or Defending, the Desirability of All Patents

Many patent-holders discuss their patent in terms which implicitly assume the desirability of all patents. For example:

> At Under-A-Bridge NPE, we are taking measures to protect our intellectual property

This sounds like something reasonable for UAB NPE to do, i.e. to protect your legal rights. But, many people are critical of patents generally, especially software patents. They see "intellectual property" as an expression which references a legal system which is not morally justified. In defending your patent as something justified by the patent system, you are tying public perception of the morality of your legal rights to the morality of things over which you have no direct control, i.e. whether or not all patents are morally justified.

It's not UAB NPE's fault if the patent system allows for the granting of "undeserved" patents, or if patent offices in some countries grant patents too generously.

It may be that the patent system needs reforming, and there are "good" patents which would be preserved by the reforms, and "bad" patents which would be rejected or invalidated. Hopefully UAB NPE's patent is one of the good ones.

But you don't want to get bogged down in trying to defend the overall operation of the patent system, or get into a discussion of possible reforms. What matters is not how people feel about all patents that have ever been granted; what matters is how people feel about your patent.

There is a standard moral justification for how patents are granted and the corresponding public benefits of that process. What you need to do is demonstrate how this moral justification applies specifically to your patent.

Very briefly, the standard justification is as follows:

- You, as an inventor, were granted a patent based on priority and non-obviousness of your invention.
- In return for receiving a right to prevent unauthorised implementation of your patented invention, you are required to disclose your invention in a publicly published and freely available document (i.e. the patent itself).
- The patent has a strictly limited term, so that eventually the invention is free for everyone to use.
- While the patent is in force, you have the ability to charge license fees to users of your invention, so that you can receive income which is proportionate to the benefit that those users receive from your invention.

So, you will want to use these items as a guideline for describing how your patent provides benefit to society. For example:

- When you conceived of the <video> tag, no one else had yet conceived of such a thing.
- Although it seems obvious now, in retrospect, it was not at all obvious to anyone that <video> tags should exist in HTML web pages.
- Indeed, if you had not invented the <video> tag, and disclosed your idea, it might not yet exist, and the general public would still now be suffering with <object> and <embed> tags.
- Eventually, in perhaps 15 years time, everyone in the world will be free to use the <video> tag without restriction and without having to pay anything. Indeed everyone will be free to invent new technologies which build on top of the functionality of <video> tags.
- For a bonus "feel good" factor, you can state a standard set of terms, conditions and license fees under which anyone will be able to use your <video> tag technology until such time as your patent expires.

## Conclusion

Probably nothing you can do will appease all the haters. But following the advice I have given here can at least help members of the public to understand why the granting of your patent is a just and deserving action which clearly benefits society in the long run.

Patent-holders may never succeed in convincing all members of the non-patent-holding public that patents are a good thing in general, but individual patent-holders can at least start a direct and honest conversation about the morality of patents, one patent at a time.