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.

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

By Definition, A Defensive Patent Is A Bad Patent

from the ending-the-myth-of-defensive-patents dept

There's been a lot of talk about "defensive" patents lately, as many companies in the tech industry try to acquire patents and claim they're only doing so for "defensive" purposes -- to act as a kind of deterrent to a patent nuclear war. Of course, this only works against other companies that produce stuff. Patent trolls are immune to defensive patents, since they don't do anything, and thus don't infringe on any patent (though, both Halliburton and IBM have tried to patent patent trolling...).

We've described in the past some of the problems with thinking patents are okay if they're only used for defensive purposes. For example, while they may start out that way, they can later be used offensively, which happens much more frequently than you might think.

But Julian Sanchez brings up a key point in this discussion, which is that a good defensive patent, by definition is a bad patent. That's because the only way a defensive patent matters is if there's some likelihood that lots of other companies would infringe on it. As Sanchez explains:

This only works, however, if other companies are almost certain to have independently come up with the same idea. A patent that is truly so original that somebody else wouldn’t arrive at the same solution by applying normal engineering skill is useless as a defensive patent. You can’t threaten someone with a countersuit if your idea is so brilliant that your opponents—because they didn’t think of it—haven’t incorporated it in their technology. The ideal defensive patent, by contrast, is the most obvious one you can get the U.S. Patent Office to sign off on—one that competitors are likely to unwittingly “infringe,” not realizing they’ve made themselves vulnerable to legal counterattack, because it’s simply the solution a good, smart engineer trying to solve a particular problem would naturally come up with.

Of course, that describes a ton of patents out there. So broad and so obvious that tons of companies infringe. And those are, clearly, the worst, most economically damaging patents around. So, those who are seeking the best "defensive" patents are basically seeking the worst patents the USPTO has granted...

Oh, and should we mention now that Google just bought a bunch of patents from IBM for "defensive" purposes?

Filed Under: bad patents, defensive patents, patent trolling, patents
Companies: google, ibm, intellectual ventures

Does Google Have A Patent Problem... Or Does The Patent System Have A Google Problem?

from the oddities dept

If you follow patents in the tech world, a good site to watch is LatestPatents.com, which highlights a few big tech companies, listing out the number of patent applications published each week and patents granted each week. What always strikes me is the differences in numbers between the companies. For example, last week, Google had seven patent applications published and seven patents granted. Compare that to Microsoft, which had 35 patent applications published and 40 patents granted. Apple had 21 applications published and 21 patents granted. IBM is, of course, king of them all with 122 patent applications published and 118 patents granted last week alone.

The numbers are pretty consistent, really.

Anyway, Google's patent policy is getting some attention as it's announced that it's bidding on Nortel's patents almost entirely as an attempt to keep them out of the hands of patent trolls. As we noted last year, all that's left of Nortel is a big patent portfolio, which we expected to end up with Intellectual Ventures or some other patent troll. However, Google is hoping to step in and explained its reasoning, noting that it would prefer real patent reform, but it recognizes that it may need to buy this portfolio as a defensive move to keep it from getting sued and hopes that it allows greater innovation.

Amazingly, patent supporters are interpreting this as being Google having to "catch up" on "patent ownership," as if the company has made a huge mistake in not going patent crazy in its early years. That entire article seems to take the position that not patenting everything was a "mistake" on Google's part, rather than a recognition that patents aren't necessary for innovation, and actually may be a hindrance to innovation. Now that Google is being pushed to shell out close to a billion dollars just to get some patents it doesn't really seem to want or need, shouldn't that be evidence that the patent system has a Google problem, in that Google didn't (and doesn't) really need patents to innovate, rather than Google having a patent problem?

Filed Under: defensive patents, patents
Companies: google, nortel