Defensive Patent License: A Solution To Patent Problems... Or Just A Way To Highlight Them?

from the and-shouldn't-it-be-league dept

There have been a few unique ideas lately about ways for tech companies to try to "deal" with the explosion of innovation-hindering patent lawsuits against any company that's been marginally successful. For innovators, it's become something of a pandemic, so it's no surprise to see some experiments come about. A few months back, for example, Twitter got a lot of attention for its Innovator's Patent Agreement, which guarantees that any patent assigned by an employee to the company allows the original inventor an effective veto its offensive use. That is, an engineer (even after they leave Twitter, or even after a patent may have changed hands) can, independently of the patent holder, issue a no-fee license for the patent -- so the inventor can grant a license that gets others out of any patent dispute.

And while some other companies are considering using Twitter's IPA -- which it's released publicly for others to use -- it's still a single-company solution. One alternative that focused on a bunch of companies working together was Paul Graham's Patent Pledge which lets companies pledge that they won't use software patents against companies with less than 25 people. A bunch of startups have signed on. It's a nice idea, but the wrong target. The companies willing to sign such a pledge tend to be the ones who wouldn't use their patents offensively anyway.

This week, another potential option was announced too: the Defensive Patent Licence (DPL), which basically requires those who sign up to pledge all of their patents to be covered by the DPL. The way it works is any company that signs on to the DPL cannot assert its patents against any other DPL member. In some ways, it seems like the "L" in DPL would be better as "league" rather than license, since the key aspect is that anyone who does this is effectively in agreement with everyone else in the DPL.

Of course, there's a bit of game theory at work here. You might think that bigger companies would never join the DPL -- and to some extent that's clearly an issue. However, remember, that the big guys may want to avoid lawsuits from patents under the DPL too... but the only way to do so would be to join, at which point they'd have to effectively license all their patents to all other members.

Jason Schultz and Jennifer Urban, the professors responsible for putting this together, have an interesting research paper on the concept that's worth reading.

In many ways, this is an attempt to use the "benefits" of a system like, for example, Intellectual Ventures, without the soul-sucking evilness part. How well it works will very much depend on who takes part. Though, a big issue is that trolls will clearly stay out of it, and they remain one of the central problems with the patent system.

In the end, it seems like all these different ideas are really mostly useful for one key thing: highlighting the many, many, many ways in which current patent system is totally screwed up.

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  1. icon
    Cerberus (profile), 13 Jun 2012 @ 4:05pm

    I know this sounds twisted, but how about if a few big tech companies formed a league with the following condition: each member vows to start litigating at full force (using any stupid patents they have) against other tech companies that litigate in a trollish way, the way Oracle or Apple or Samsung are trolling competitors now (albeit Samsung may be doing so defensively). That way, any tech company that contemplates suing another must take into account the costs of being sued over random other stupid patents from the League. As a scare tactic, this might make the costs and risks of trolling too high.

    Of course this does little against the real patent trolls that do not actually produce anything, and have nothing to fear from patents being used against them. Against those guys, perhaps the League could create some sort of defensive organization with some money and the best lawyers, who would take the case in case any of the members are attacked by a real troll.

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