Nilay Patel’s response to the recent calls to abolish software patents (or all patents). While I disagree with many of his conclusions, it’s a well-written piece that you should read if you’re interested in the patent debate to understand some alternative viewpoints.
But I don’t think this point, or the dismissive attitude concluding it that runs throughout the piece, is helpful:
In practical terms, all this means it’s now much harder to get a patent — you’ve got to prove that your invention wouldn’t be obvious to someone else trying to solve the same problem with the same tools. By the same token, it’s now that much easier to defend a patent lawsuit. But whatever, the system is fundamentally broken, let’s burn everything down.
Spoken like a true lawyer: yes, the courts have given lawyers a lot of tools with which to defend patent lawsuits, but only those that actually reach the point of being heard in courts.
It’s only “easier to defend a patent lawsuit” if you have infinite money to give lawyers, infinite time to deal with it, and an infinite tolerance for stress and uncertainty in the process.
Most companies either don’t have the resources or conclude that it’s not cost-effective to reach the point of being able to reasonably argue about a patent suit’s validity, so in practice, targets threatened by patent litigation rarely have the chance to defend themselves.
Patel’s argument is more of an academic exercise in this regard: yes, in theory, the patent system is healthier than many of us in this discussion suggest. But in practice, I don’t think we’re far off.