Do you work at a company that tells its employees that "patents will only be used defensively"? If so pay attention to this because it is your future.
Do you work for a company that gives bonuses for filing patents? Do you use the "only for defensive purposes" assurances as a way to soothe your troubled soul when you take the money? If so, pay attention to this times two.
I think filing patents defensively makes sense. I witnessed this firsthand at Google on the Android team as the patent wars started and because most Googlers are anti-patent, Google was at a severe disadvantage to MSFT, Apple, etc.
Ideally, we would just reform patent law to mitigate this but outside of that, I think it makes sense for companies to incentivize their workers to file patents "defensively".
When I said "pay attention to this because it is your future" I was specifically thinking about Google. I basically guarantee that somewhere down the road Google will abandon their "only for defensive purposes" stance.
What makes you think this won't happen with Google?
They have a very valuable patent portfolio, and there is a very high likelihood that Google will at some point experience problems similar to Yahoo, Microsoft, Kodak, etc.
Once that happens, shareholders will be clamoring for that asset to be put to use - if management hasn't already done so to prop earnings up.
And that's why it's so pervasive - the only practical defense to patent lawsuits is building up your own portfolio of patents for defensive purposes. But, since it is highly likely that your company will face situations that require you to utilize that portfolio in an offensive way, your previously defensive patents will require other companies to acquire their own 'defensive' patents. Ad infinitum.
Google sometimes attaches patent licenses for non-aggressors for code they've open-sourced (see: WebM). That ties the hands of a future management: the relevant patents are only useful defensively. Anyone not suing Google (or a downstream user of Google's code) for patent infringement related to that code can take advantage of the freely available patent license.
Of course, they're not doing that for everything (e.g. PageRank patents), but to the extent that they do this for the patents they intend to use defensively, they might avoid this problem.
On the other hand, when the question you're facing is the existence of your company or your product at your company, that decision is a lot harder than "might this patent be used unethically in the future?"
I think James Gosling has a blog post about the huge number of defensive patents they started filing at Sun after losing some lawsuits over low-quality patents to make sure they would be protected in the future. Now all of those patents are owned by Oracle.
Of course, if Sun had been more successful, those patents might still be a net positive in the market, so it really isn't that simple. I do agree that the market incentives for companies are perverse (in terms of the constitutional purpose of patents), which is exactly why software patents desperately need reform.
Incidentally, Red Hat is a good example of an actively anti-software-patent company with a number of patents. It's unlikely that their policies will change, but it is possible. I don't, however, think it's a net negative when Red Hat employees file for them in the system we are unfortunately stuck with.
Ya, we basically agree. The whole system has awful incentives and is in desperate need of reform. Unfortunately I don't see that happening anytime soon. One can certainly hope though!
Do you work for a company that gives bonuses for filing patents? Do you use the "only for defensive purposes" assurances as a way to soothe your troubled soul when you take the money? If so, pay attention to this times two.