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

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

Wed, Jun 13th 2012 3:49pm — Mike Masnick

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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Filed Under: defensive patents, dpl, ipa, licensing, patent troll

15 Comments

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fogbugzd (profile), 13 Jun 2012 @ 4:01pm

Lots of companies claim that they will only use patents for defensive use but turn patent troll in a surprisingly short time. In its current form defensive-use only promises carry about as much credibility as a teenager with raging hormones taking a purity pledge.

The DPL would be a way for companies to prove they are serious. If they really mean to only use patents defensively, then they should have no objection to joining something like the DPL.
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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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Cerberus (profile), 13 Jun 2012 @ 4:07pm

Re:
Just to be clear: I mean the League would act against any trolling anywhere, even if none of its members were involved at all. That way, the deterrent effect would be most effective.
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Anonymous Coward, 13 Jun 2012 @ 4:07pm

Your article looks backwards, in the past, speaking of already existing patents in patent trolls' hands.

What these Twitter's IPA and others DPL do is to look into the future, speaking about patents that will never fall into patent trolls' hands.

If a solution don't highlight a problem, then you don't have a problem and you don't need a solution.
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Cerberus (profile), 13 Jun 2012 @ 4:11pm

Re:
Good point. In this light, trying to patent as many stupid and over-broad things so that they may not fall into the hands of future trolls (and contesting any tech patents that are brought before the world's patent bureaux) might also be a good idea.
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Anonymous Coward, 13 Jun 2012 @ 4:16pm

Re: Re:
Except that once you do patent such things, eventually, market forces being what they are, they will fall into the wrong hands and will be used.
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Cerberus (profile), 13 Jun 2012 @ 4:25pm

Re: Re: Re:
How about if you put them in the hands of a foundation with a very strict statute?
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mischab1, 13 Jun 2012 @ 4:39pm

I don't really trust that the DPL would work in practice. Not unless the companies also were required to attach a rider to any future patent sales preventing the sold patents from being used against anyone in the DPL.
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Unanimous Cow Herd (profile), 13 Jun 2012 @ 5:01pm

Might this all be trumped by this highly illegal and unconstitutional crap?
More leaked TPP. Link courtesy of Public Citizen
http://www.citizenstrade.org/ctc/wp-content/uploads/2012/06/tppinvestment.pdf
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Unanimous Cow Herd (profile), 13 Jun 2012 @ 5:14pm

Re: Might this all be trumped by this highly illegal and unconstitutional crap?
Sorry all. Member this long and just now found the "Submit Story" link on profile page. Won't happen again.
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TtfnJohn (profile), 13 Jun 2012 @ 6:38pm

highlighting the many, many, many ways in which current patent system is totally screwed up.

A lot of these ideas also sprung up around the time of the SCO vs anything remotely Linux lawsuits where companies such as Novell and IBM and others pledged not to use their copyrights or patents against open source or GPL software. How much of it was a "stunt" and how much seriously is open to question though Novell and IBM are deep in the Linux business on corporate servers and what not so that keeping the OS healthy and defended is very important to them.

If it only works to highlight the mess US Patent Law has become then it serves a valuable service. Readers of this blog, Groklaw and others that follow this sort of thing are the few who realize what's become of it in the last 10 or 15 years and those start ups and even veterans in the tech industry. Perhaps not even then till a patent troll bites them.

In fact highlighting the mess so-called IP has become in the past few years might just wake the broader public to the mess it's become, far beyond what it was ever intended to be.

Even the idea of defensive patents or pools of the makes me nervous. Does this mean that we've reached the point where only the nuclear button is the only option to deal with invalid patents, over aiming patent holders and our good friend the patent troll?

If that is the case then we've reached the point where patents as a concept have utterly and completely failed.
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Anonymous Coward, 13 Jun 2012 @ 9:30pm

Patent Abolition
"we've reached the point where patents as a concept have utterly and completely failed."

Agreed. Abolition of the patent system is the answer. Does anybody else agree with that answer?
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Lord Binky, 14 Jun 2012 @ 7:53am

Step 1 toward the Opt-Out System.
I really hope we're moving toward an Opt-Out addition to the system. That way you can't hold or be held to patents. I think it's possible to wedge this in to be compliant with all the stupid treaties that have been made to make everyone conform to some kind of horrible patent system (not that all patent systems are horrible, but patent systems made to work with horrible patents systems..tend to be horrible themselves..)
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Cerberus (profile), 14 Jun 2012 @ 12:55pm

Re: Patent Abolition
Perhaps...at first it should be severely weakened. Then we can evaluated the weakened system, see whether more weakening is necessary. But, if I had the choice between the current system and abolition, the abolition it is!
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patent litigation, 18 Jun 2012 @ 12:39am

heartwarming, but
Twitter's recent patent pledge may be heartwarming, but I wonder how long it will hold. In an era in which patent monetization has become increasingly necessary for many companies to survive -- much less compete -- it is difficult to believe that Twitter will resist the siren song of major cash payoffs indefinitely.
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