alerts us to a new effort to create a "Defensive Patent License" (DPL) as a defensive mechanism for open source developers
. The idea is a bit more advanced than your every day patent pools (even the defensive ones). The basic framework is as follows:
- Members of the DPL would make a business decision that they are obtaining patents strictly for defensive purposes and not because they want to sell licenses or go on the offensive with lawsuits.
- Members of the DPL contribute all of their patents in their patent portfolio – they don’t pick and choose (and this is what differentiates it from other defensive patent pools).
- Members of the DPL allow all other members to use its patents without royalty and without fear of patent infringement lawsuits from other members as long as a member does not file offensive lawsuits or remove their patents from the DPL.
- Members may choose to leave the DPL but cannot revoke the royalty-free license from members who used it during the time the company was a member.
- Members that join after a company leaves would not have royalty-free access to a former member’s patent portfolio.
- The royalty-free cross licensing applies only to members of the DPL. Members are free to pursue royalties or lawsuits with companies outside the DPL.
It still seems like a pain that those who don't even believe in software patents have to go through this sort of trouble, but it's the nature of the system. Also, it does worry me that this creates more incentives for patents to be filed, when those patents could, potentially, end up in others' hands down the road. Apparently the folks putting this together are looking into whether or not the "membership could legally be applied to a patent that changed ownership from a bankruptcy." Of course, even so, the new owner could opt-out of the DPL, and while it couldn't revoke the license for other members, those patents could still be used pretty offensively. Either way, given the nature of the market today, adding a bit more protection for open source developers seems like it could be a good thing -- even though we haven't seen too many successful patent lawsuits against open source providers.