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The "Defensive Patent License" an Open Defensive Patent Pool

Posted by Unknown on from the debian-project-leader-kidnapped dept.

capedgirardeau writes "Via Cory Doctorow at BoingBoing:: 'Ars Technica's Jon Brodkin has an in-depth look at the "Defensive Patent License," a kind of judo for the patent system created by ... EFF's Jason Schultz (who started EFF's Patent Busting Project) and ... Jen Urban (who co-created the ChillingEffects clearinghouse). As you'd expect from two such killer legal freedom fighters, the DPL is audacious, exciting, and wicked cool. It's a license pool that companies opt into, and members of the pool pledge not to sue one another for infringement. If you're ever being sued for patent infringement, you can get an automatic license to a conflicting patent just by throwing your patents into the pool. The more patent trolls threaten people, the more incentive there is to join the league of Internet patent freedom fighters."

4 of 98 comments (clear)

  1. patent holders only? by gbjbaanb · · Score: 4, Interesting

    can anyone join this, or is it only for patent holders who "throw their patents into the pool"?

    It would be wicked cool if anyone, including independent software developers, could join and gain the protection offered from the trolls too.

    1. Re:patent holders only? by tlhIngan · · Score: 3, Interesting

      can anyone join this, or is it only for patent holders who "throw their patents into the pool"?

      It would be wicked cool if anyone, including independent software developers, could join and gain the protection offered from the trolls too.

      Pretty much patent holders only. It's really a formalized gentleman's agreement that you will not sue anyone in the group over any of your patents, and in return, they won't sue you.

      The problems with it are numerous. First, you have to throw in your entire patent pool, so the big guys with lots of patents will probably not join (IBM, Apple, Microsoft, Samsung,, etc). Second, patent trolls won't join (they don't have any benefit because there's little they can be sued for).

      The requirement for all patents is obvious - to prevent cherry-picking lame ones to be included in the group.

      The biggest benefit comes to open-source companies like Red Hat who own patents for defense purposes, in which case it's really a put-up-or-shut-up type agreement.

  2. Re:HTC vs Apple by rtfa-troll · · Score: 5, Interesting
    This is the least of it. This license seems to me quite dangerous. Actual patent infringment is unlikely to take place in patent creating entities in future. Imagine Microsoft split into "Microsoft Enforcers" (hoards patents, makes patent trolls) "Microsoft Software" (sells software ordered from Microsoft Developers, buy's "covenant's not to sue" from Microsoft Enforcers) "Microsoft Developers" (sells software/people to Microsoft Software; sells patents to Microsoft Enforcers) "Microsoft Troll(n)" (loans patents from Microsoft Enforcers, makes lawsuits - one troll per patent;).

    N.B. I have probably got some of the details wrong, and you may have to use a company registration for Microsoft in a non-software patents jurisdiction to transfer the software from Microsoft Developers to Microsoft Software but you get the idea.

    • Microsoft Software does all the infringement; it could even potentially join the DPL. It never sues anyone so the DPL causes it no problems.
    • Microsoft Enforcers never does any software; both it and the Microsoft Trolls that it spins off cannot be sued for infringement since they never do.

    The only defence against this is that, if Microsoft Troll(527) sues you, you have to sue Microsoft Software back. The DPL and other similar patent pools can endanger that.

    Basically, if you don't reserve the right to sue any apparently "innocent" entity which has taken a patent license or even taken advantage of a "covenant not to sue" then you may not be able to use patents defensively. It's probably an absolute requirement that you be able to sue Microsoft's customers for things that Microsoft related entities do. Anything else will leave you vulnerable to a troll suit that, even if you manage to settle, allows your competitor to force you out of the market by charging you per system you deliver.

    --
    =~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
  3. Re:worthless against trolls by reebmmm · · Score: 3, Interesting

    I did put "better" in scare quotes. RPX has a great many flaws. Nevertheless, the idea isn't that much different than this one, but has the advantages of being able to act and make decisions that affect the collective. On the latter, it might mean "acquiring" troll's patents which in effect might be like a massive, joint settlement.

    Now of course, there's no promise from RPX that the patents in its arsenal will never be used. They are quite clear that part of their strategy is to eventually sell patents from their portfolio to others. Those others are only going to buy if there's some way to license/enforce them.

    I also qualified that it costs money to participate. Of course, it also costs RPX money to operate and to acquire patents.