Can Intellectual Property law keep up with companies “weaponizing” patents?

July 27, 2012

Yahoo v FacebookTraditionally, the biggest tension in Intellectual Property law has been the friction generated by its two competing interests: Giving creators protection so they can benefit from their work, and ensuring that innovations are made available so that society can benefit from them.

But as we know, law isn’t static. It changes, and sometimes in ways we don’t foresee.

An example of a newly developing tension that has intrigued me lately is the discussion about whether certain companies are “weaponizing” patents.

Patents are generally considered shields rather than swords, meant to preempt copying and protect the economic value of inventions. But in the technology industry, for example, competition for top talent and trendsetting products is so cutthroat that companies seem to be using their patents to stock their arsenals. This goes against the traditional understanding of how a patent should be used, but if it becomes widely accepted, it would be a very beneficial new option for many patent-holders

Recently, Yahoo sued Facebook, alleging that Facebook had infringed on some patents Yahoo owned. (You can read more about that lawsuit here) But after news of the lawsuit broke, the allegations of impropriety came thick and fast.

Supposedly, Yahoo had urged its engineers to file for patents even before their innovations were complete (generally a frowned-upon practice) and had a policy of encouraging patent applications so that it could later sue competitors for infringement, halting their innovation and tangling them up in costly and time-consuming legislation. The fact that Yahoo chose to file its lawsuit just before Facebook went public also smacked of extortion.

Yahoo and Facebook settled their dispute out of court not long ago, so there’s a good chance we’ll never really get to know which (if any) of those allegations are true. But given the no-holds-barred competition among technology companies today, this is not likely to be the last time we hear about weaponizing patents.