The USPTO has a strange insistence on granting them even though they aren't legally valid. Therefore, if you have a lot of money, you might file a software patent for one of four reasons:
1) You hope that the US courts might one day change their minds and start enforcing software patents.
2) You hope that you might scare people in to giving you licensing fees even though you know the patent won't be enforced.
3) You want to prevent others from scaring you in to giving them licensing fees.
4) You want to get a patent because it's impressive/looks good on your resume.
I recently learned [0] that the USPTO makes it money from patents, its not government funded. Not only that but checking patents loses them net money while maintenance fees are the real cash cow.
The whole system is similar to the revenue model of a shitty journal that just publishes whatever research as long as the author pays. Except the office doesn't even need to care about their reputation in granting dubious patents because they have legal backing.
[0] It was a comment on hacker news, that I checked.
It's not the user fee model that's broken, it's the revenue basis. Maybe it would be more effective if they tripled the filing cost and if you successfully obtain the patent (it's rejected by the patent officers), you get half back.
otherwise an evil law firm could spam adaptations of your idea to every relevant industry and get rights over your invention without your consent. that would be a complete perversion of what the patent system is supposed to do.
No you don't. That being said, what is the point of a patent if not to enforce the right of exclusivity it grants as to the invention?
Usually it's to defend against another company using a "blocking patent" by pursuing you for infringing their patent which is built upon the thing you patented, doing the next step which was always obvious to you.
So that you can continue building what you started in the first place, instead of being shut down while someone else takes your idea forward.
Not for exclusivity.
Would be pretty hard to sue someone for practicing a patent that cites that person in prior art who concurrently was inventing the same thing and would say how obvious it ones. You're going to tell me it's not so easy, but you completely made up some really narrow and specific situation anyway...
>Not for exclusivity.
It's only your right to exclude others from it that gives a patent any defense... it's all about exclusivity. That's the fundamental nature of property law.
Company A publishes invention 1, when they know inventions 2, 3, 4 follow naturally in their own roadmap but those things aren't obvious to other people yet. Invention 1 is just a stepping stone in company A's larger vision, and it's not useful by itself, but they can't publish (or patent) everything at once, it takes time to develop them. It's also not permitted to patent 4 inventions in one patent. There are time, expense and R&D factors.
Company B studies invention 1, realises invention 2 follows naturally (as does everyone who looks at invention 1), and company B patents invention 2 before anyone else.
They can do this because inventions 2, 3, 4 are not obvious to persons skilled in the art who haven't seen invention 1. They are only obvious to anyone who works with invention 1.
The standard is not "if you knew about invention 1, would 2 be an obvious next step", it's "would 2 be obvious with general industry knowledge alone".
When that happens company A is stuck, whether they patented invention 1 or just published and/or used it.
With their prior art, they can continue to use invention 1, even if they didn't patent it, but it's not much use by itself. They can't develop it further in the directions they'd had in mind all along. And sometimes company B's patent and company A's prior art will mean company A can continue to use invention 1 but nobody else can.
A defensive strategy is for company A to patent invention 1, even if they hate patents, just so that company B can't use invention 1 when they need it in invention 2. This doesn't stop company B from patenting invention 2 before company A, by the way. It just creates leverage for company A to persuade company B to license invention 2, instead of company A having to abandon its entire roadmap and switch to a different kind of product.
> I's only your right to exclude others from it that gives a patent any defense... it's all about exclusivity
Yes, but not all companies want to exclude. Some even want to share their work openly as they proceed. But even sharing openly and creating prior art as you go is not safe.
The natural line of development they have mapped out can be shut down by others seeing the way ahead and blocking it, which is a strategy, as I said, that I have seen discussed in real patent lawyer meetings.
For those companies, "what is the point of a patent if not to enforce the right of exclusivity it grants" -> the point is not to enforce exclusivity over anyone, because they don't want to. It's to use the granted rights as defensive leverage so they can continue developing, publishing and using their own work.
>Yes, but not all companies want to exclude. Some even want to share their work openly as they proceed. But even sharing openly and creating prior art as you go is not safe.
That's great, patents are publicly available documents. So patentees can feel free to share!
>For those companies, "what is the point of a patent if not to enforce the right of exclusivity it grants" -> the point is not to enforce exclusivity over anyone, because they don't want to. It's to use the granted rights as defensive leverage so they can continue developing, publishing and using their own work.
You're just making some semantic point for a reason I cannot understand. Patents only give the right of exclusion, what a patentee does with that right is up to them... They can trade on it, use it to bargain, give it up, whatever.
It's always something like this, from someone who didn't even realize they weren't actually talking about patents in the first place.
Well, trade secrets could also do the trick?
OpenAI, Anthropic, Google, Meta and X are each valued at a trillion or more. Mistral is valued at $20B, 50x less. Even Deepseek is several times bigger than Mistral.
$20B is certainly not poor, but in the world of AI and overinflated valuations, it almost is.
Btw, OpenAI words, not mine https://news.ycombinator.com/item?id=49232778