Effort Underway For Defensive Patent Pool For Open Source Developers

from the figthing-evil-with-evil dept

Mon, May 10th 2010 4:32pm — Mike Masnick

Slashdot 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.

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Filed Under: defensive, dpl, open source, patents

20 Comments

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The Mad Hatter (profile), 10 May 2010 @ 4:50pm

What about those who don't believe in patents at all?
I've worked in manufacturing for a long time, on things like forklifts, construction equipment, lawn mowers, trucks, etc. In my last position I was responsible for evaluating technologies, and had to read a lot of patents. Guess what? Almost all of the patents that I read were invalid according to U.S. Patent Office rules.

Seriously. The most common issue was obviousness, but there were also a lot of patents that were invalid because the description was so poor that no one could learn anything from it, or the item patented was scientifically impossible. There were a few that were quite workable, but patented natural phenomenon.

The end result is that the patent system is a parasitic drag on the economy, and in the United States (the country which the Global Recession has hurt the worst) may cause a huge delay in recovery.

Of course there are a lot of people who will disagree with me on this, and in many quarters my opinion will not be welcome.
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- Andrew F (profile), 10 May 2010 @ 5:39pm
  
  Re: What about those who don't believe in patents at all?
  I don't think that many of the people trying to make this DPL do believe in patents. They're just trying to set up a system to protect themselves from other patent-holders by subverting the existing system.
  
  It's like Creative Commons and open-source licenses. Many people who use those licenses don't believe in copyright, but are willing to use copyright law to subvert it (hence the term "copyleft").
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  - ChurchHatesTucker (profile), 10 May 2010 @ 5:56pm
    
    Re: Re: What about those who don't believe in patents at all?
    I dunno. There are those (e.g., Cory Doctorow) who are all about a specific CC license, recognizing the benefits of not being a complete dick, but are perfectly happy to have copyright lengths stay where they are (or even increase.)
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    - Nina Paley (profile), 11 May 2010 @ 6:20am
      
      Re: Re: Re: What about those who don't believe in patents at all?
      And maintain commercial monopolies via the -NC licenses. :-(
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      - Hephaestus (profile), 11 May 2010 @ 7:44am
        
        Re: Re: Re: Re: What about those who don't believe in patents at all?
        I read the "-NC licenses" and looked it up. It made me remember a thought from a couple weeks back. Why hasnt anyone come up with a creative commons that goes back to Queen Anne style copyright with length of copyright, and both non commercial use, and commercial use spelled out?
        
        The reason for it would be to set up a system of rules that would already be in place for when the copyright and patent system comes crashing down. If it were to be the norm on the internet, a set of standards, and the majority of people followed it. It couldnt be lobbied, legislated, or corrupted. JMHO
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        ChurchHatesTucker (profile), 11 May 2010 @ 7:10pm
        
        Re: Re: Re: Re: Re: What about those who don't believe in patents at all?
        Have you seen the Founders' Copyright?
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  - Anonymous Coward, 10 May 2010 @ 7:18pm
    
    Re: Re: What about those who don't believe in patents at all?
    "I don't think that many of the people trying to make this DPL do believe in patents."
    
    I think the relevant question is, can people who have no patents join the DPL. Say someone has no patents because they don't believe in obtaining patents (since they don't believe in the patent system very much). Can they join the DPL and be protected?
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    - Anonymous Coward, 10 May 2010 @ 7:22pm
      
      Re: Re: Re: What about those who don't believe in patents at all?
      and, upon joining the DPL, if someone sues them for patent infringement for a patent that no member of the DPL has, can/will the DPL counter sue on behalf of the person being sued? Is that legal? Or can the DPL file a separate infringement lawsuit against the person who initiated the patent suit against the DPL member? Can the DPL member countersue with its own patents or with other DPL patents without violating the DPL? What are the legal ramifications and DPL policies of this. A defensive patent organization is good, but I think it should actively go on the office against patent trolls as well.
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- Karl (profile), 10 May 2010 @ 6:01pm
  
  Re: What about those who don't believe in patents at all?
  In your case, it sounds like the patent office was actually doing its job right. Stuff that is unclear, obvious, or natural should not be patentable.
  
  It's not like you need a patent to produce a product, so how is this going to hurt the economy exactly?
  
  Having said that - this system seems a bit unnecessary to me. If this would be like a GPL for physical patents, then I'm all for it, but it seems to have many more complications than the GPL.
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  - The Mad Hatter (profile), 11 May 2010 @ 5:34am
    
    Let me get this straight
    The Patent Office is doing it's job by ignoring it's own rules? And this makes sense to you how?
    
    As to needing a patent to produce a product, ok, so I don't have a patent, and XYZ Company claims that they do. Now I have to defend myself in court, which could end up costing me millions of dollars eve if I win, and if I don't win I will end up paying them even more, and therefore I can't sell the product as cheaply as I would have. Now my customers are unhappy because I have raised the price. Tell me how this is good for the economy.
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  - Anonymous Coward, 11 May 2010 @ 5:45pm
    
    Re: Re: What about those who don't believe in patents at all?
    In your case, it sounds like the patent office was actually doing its job right. Stuff that is unclear, obvious, or natural should not be patentable.
    
    So if those kinds of things should not be patentable, just how is the patent office "doing its job right" by allowing them to be patented? Please explain that one.
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Anonymous Coward, 10 May 2010 @ 5:24pm

What could possibly go wrong ?
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- Anonymous Coward, 10 May 2010 @ 6:31pm
  
  Re:
  Aids?
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Anonymous Coward, 10 May 2010 @ 7:29pm

"Members are free to pursue royalties or lawsuits with companies outside the DPL."

I don't like this at all. Sounds almost like a Cartel like setup, kinda. I think that this whole patent cross licensing business sounds like organizing a cartel and should be subject to anti trust suits. It gives the appearance of competition, there are many companies selling MP3 players (assuming an MP3 player is patented), but in reality they are behaving more like a cartel, preventing newcomers from entering the market and cross licensing only to the extent that it increases profits and not aggregate output.
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Anonymous Coward, 10 May 2010 @ 8:19pm

dpl is just setting themselves up to be targets for lawsuits and a legal machine that will likely try to represent rights holders. i bet you there is a couple of lawyers trying to make a fortune hiding behind this one.
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- TheAntiTAM, 10 May 2010 @ 11:09pm
  
  Re:
  you are mistaken your opinion for hard facts. the only hard fact anywhere in this whole discussion is the group exists. we dont have anything else. Have more lawyers been hired? Are there more engineers on hand? have they streamlined systems? we dont know because all we have is opinion. the TAM is trying to suggest conclusions not supported by evidence, mostly just an attempt to pee on anti patent efforts once again.
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Anonymous Coward, 11 May 2010 @ 4:52am

Isn't this similar to how "Intellectual Ventures" started up?
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senshikaze (profile), 11 May 2010 @ 4:54am

yea. this will work.
Until MS or the sue happy Apple show up with lawsuits in spades.If i was going to be releasing open source software (currently I release completely public domain(not the same as copyleft)) i would avoid this dpl as much as possible. sounds like a honeypot scam to me.
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Lachlan Hunt (profile), 11 May 2010 @ 5:08am

It's not really clear how the whole patent pool network will function. The article says that it's a distributed network, rather than a centrlised pool. But then it's not clear what it really means to join or to leave.

Does a company implicitly join the pool if they announce that their patent portfolio is under the licence? Or do they need to register with some centralised registry? If so, then I can't see how it can be called distributed. If not, then it would be impossible to keep track of who is and who isn't in the pool at any given them, let alone keep track of when companies join and when they leave.

IMHO, the only way this could potentially work is for it to be an irrevokable licence that applies to all patents in the owners posession at the time they make the declaration. They could, at any time, cease applying the licence to future patents they acquire, but that shouldn't revoke the licence from prior patents.

But the idea of making it so that companies can't pick and choose which patents to licence probably won't work in practice. If companies want to do that with this system, they could just set up a separate patent holding company and assign the rights for that patent to that company. So even if that special patent holding company licences all of its patents under the licence, it won't stop the original company from retaining patents it wants to keep.

So it basically becomes a way for companies to throw out their old, useless patents while still retaining, and possibly threating others with, the patents they still consider valuable. This is then no effectively different from what other companies, like IBM, have done with their prior royalty free licence to a limited selection of patents.
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PrometheeFeu (profile), 11 May 2010 @ 11:12am

This gives me an idea. How about a NATO-style patent organization? The basic idea is the members do not file patent lawsuits against each other. However, as soon as anyone files a patent lawsuit against any of the members, every member brings their full patent portfolio to bear on the attacker. If business models end up being patentable, you could even start patenting patent-troll business models and sue them for patent infringements.
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