Published March 13th, 2012

Today Yahoo launched a patent lawsuit against Facebook.

Yahoo has always said they collect patents for defensive purposes only. Then Yahoo’s newest CEO, Scott Thompson, is brought in, and gives choice quotes like this one, just 3 months ago:

“We’ll be back to innovation, we’ll be back to disruptive concepts,” he added. “I wouldn’t be here if I didn’t believe that was possible.”

Suing Facebook with patents is a disruptive concept. Yahoo just broke the patent mutually assured destruction stalemate in the valley. This also signals to all engineers that Yahoo is not interested in building disruptive products, and is instead a sinking ship.

I believe the patent system as it exists today is broken. Software patents have major issues. There are many things I would like to change, but I cannot. I also believe reform of the system as a whole is unlikely. Previously, I have chosen to try to ignore patents as much as possible. The trouble is if you ignore the patents your own company is at significant risk. Other companies don’t have the same moral beliefs about patents, and will use patents against you.

Retaliatory Only Patents

Many companies say they have a defensive only patent policy. But control of companies changes. Policies change and patents are granted for up to 20 years. Most technology companies also provide some sort of cash or other incentive to employees for filing patents of behalf of the company. Just imagine if you were an engineer at Yahoo in 2005. You made a cool new patentable idea, and went down the path of getting it patented. In 2010, you left Yahoo, as most sane people did, and could of even joined Facebook. Then 2 years after you left Yahoo, your patent, which you thought was going to be used for defensive purposes only, is used in an offensive suit against Facebook.

This kind of situation is exactly why I’ve tried to ignore patents for so long.

I think there is a better approach to motivating engineers, besides a bonus for patents.

If during the patent filing process, a company created a binding legal agreement to only use the new patent for defensive or retaliatory purposes, I would personally find this highly motivating. I am sure that the legal definition of “defensive or retaliatory” would take 20 pages of text to define, but I trust that lawyers can figure out the details. This kind of policy would make me feel much better about putting effort into filing patents for a company. If the company later changes control, they could change this policy, but it would only apply to new patents after that change in control.

I am not a lawyer, but what is stopping something like this from happening?

Written by Paul Querna, CTO @ ScaleFT. @pquerna