thedangersofpatentsasweapons.docVIP

The Dangers of Patents as Weapons Paul James Jackson LLM – International Commercial Law University of Kent September 2007 18,000 words Abstract As patents have increased in power and importance over recent years, their role has evolved. We are currently seeing patents being used as an offensive weapon against competitors, rather than being used to protect rights and increase innovation, as they were intended. This has led to a ‘patent arms race’ between companies who have realised the commercial importance of a well-stocked patent portfolio. The changes in commercial trends have led to a cycle where companies have to gain patents because their competitors are doing so. This perpetuating cycle is leading to a point where a single patent infringement suit could lead to a whole series of counteractions, the consequences of which could be devastating. This thesis argues that the dangers of having patents as a weapon in a company’s strategic arsenal far outweigh any benefit that could possibly be purported. The ‘patent arms race’ is leading to the threat of ‘mutually assured patent destruction’, and this places both companies, large and small, and the patent system itself, in jeopardy, and so cannot be ignored. The evolution of the ways in which patents can be used in an offensive manner, has seen a number of devious and sophisticated strategies emerge. The dangers that the utilisation of these strategies poses, to both innovation and competition, combined with the huge danger of infringement litigation, all paint a picture that places companies and the patent system in a precarious situation. The emergence of patent holding companies, or ‘patent trolls’, presents the greatest menace of all, as these companies threaten to unbalance this delicate situation, and the consequences of this are grave. Acknowledgements The author would like to thank: Alan Story, for introducing me to the world of intellectual property and for his guida