The "Defensive Patent License" an Open Defensive Patent Pool

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."

Comments

Re:HTC vs Apple

[rtfa-troll]

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.