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

patent holders only?

[gbjbaanb]

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.

Re:patent holders only?

[Jeng]

Just add "on the internet" to a rather mundane daily task like "taking a shit" and you'll get yourself a patent that will allow you to join.

Re:patent holders only?

[Jeng]

In the 70s you just had to add a digital clock to something

I don't think adding a clock to a pile of shit was ever patented considering how often it happened.

Re:patent holders only?

[tlhIngan]

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.

Re:patent holders only?

[Jeng]

PLEASE Patent a method for doing this! I would pay CASH MONEY to be able to PHYSICALLY shit on Apple and Microsoft over the internet! There are MILLIONS to be made here, man! MILLIONS!

Woah, hold up there. I'm not coming up with the method, I'm talking about patenting the idea. Let someone else figure out a method and then sue them.

That is how these things work right?

Re:patent holders only?

[stephanruby]

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

Of course, even Microsoft can join with just one patent.

And then, they can give the rest of their patents to a proxy shell corporation, like they have done in the past, and continue to sue everybody that way.

Re:patent holders only?

[Roujo]

It's not Patent Holders Only. The current text of the license, as found on Github, states that:

3. 'DPL User' means an entity or individual that:

(a) has committed to offer a license to each of its Patents under the DPL, or, if such entity or individual has no Patents, has committed to offer a license to any Patents it may obtain in the future under the DPL; and

(b) has declared such commitment by means of an Offering Announcement;

(c) and, if the entity or individual has made a Discontinuation Announcement, the Discontinuation Date has not yet occurred.

So you can take part if you don't have any patents as long as you promise to license any patents you get later under the DPL.

HTC vs Apple

[Infernal Device]

Given the developments in the HTC vs. Apple case (http://www.techradar.com/news/phone-and-communications/mobile-phones/htc-denied-use-of-google-patents-in-apple-case-1084691), will the Defensive Patent License actually work, since the defendant won't actually *own* the patent?

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.

worthless against trolls

[sribe]

This would provide, potentially, fine defense against being sued by an actual company with actual products, because with a large patent pool you'd be likely to find one that your attacker is potentially infringing.

But patent trolls do not infringe, because they do not have products.

Re:worthless against trolls

[reemul]

That was my immediate thought, too. Against pure trolls, IP only companies that don't actually make anything, this would be worthless. Companies would just spin off their portfolios to new "independent" IP entities who produced nothing but lawsuits to avoid the defensive response.

Re:worthless against trolls

[reebmmm]

I'm a patent attorney and I agree.

Unless I'm fundamentally misunderstanding the purpose, there's no legal judo here. It can't protect you against non-participants. It certainly can't protect you against trolls. It only seems to protect you against people/entities already inclined not to use their patents aggressively.

What would be more useful is if it worked this way (it doesn't):

Non-participating entity A sues participating entity B.
Entity B has no useful patents with which to sue Entity A.
Some other participating Entity C does have a useful patent to sue Entity A.
Entity B can use Entity C's patents against Entity A.

But, this scheme doesn't make that happen. In fact, there's basically no way to make Entity C actually use its patents against Entity A on behalf of Entity B. Neither the patent law nor this license could make Entity C's patents a weapon against A.

Even if there were a way, no one with any patents of value would sign up for the DPL since: (1) the cost of enforcing the patent is going to be expensive; (2) turning over the right to enforce the patent to Entity B would be like handing the keys to your car to someone you don't know and assuming responsibility for any damage to your car (e.g., patent is held invalid, found not infringed, etc.); and (3) a priori knowledge of the value of the patent might mean that you'd be in a better defensive position not having granted "free" licenses to every participant (something that inevitably will come up in a damage calculation).

  The DPL is a solution searching for a problem. And a foolish solution at that.

A company called RPX has created a much "better" solution for those that can afford to be part of the membership. Of course, in that case, RPX is the point person and has an ability to make things happen and has their own patents that they've acquired.

Re:worthless against trolls

[reebmmm]

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.

Re:Great idea

[MozeeToby]

For 20 years everyone in, for example, the cell phone industry knew that stabbing your competitor in the back was a losing proposition. Perhaps if the pool gets large enough we can get everyone back to that state and have certain companies who shall remain nameless stop trying to beat the competition with bogus patents and idiot judges.

And the selling point is...?

[Anubis IV]

How does this actually benefit anyone? Companies with deep patent portfolios stand to lose both their competitive advantage and lost opportunity for licensing fees by making those patents freely available to everyone in the group (at least, it sounds like they're freely available if they're pledging not to sue one another), so you won't be seeing Microsofts, Googles, or Apples joining anytime soon. The only sorts of companies joining this are the ones who are afraid of being sued, and they're not about to be suing anyone else anyway.

So, basically, the companies with oodles of patents (i.e. patent trolls and large corporations) won't be joining the group anytime soon, which means that they'll continue to be able to sue everyone in the group, and most of those aren't scared of conflicting patents since they can afford to simply bankrupt the smaller companies via legal fees. Meanwhile, the companies in the group have essentially commoditized themselves by allowing everyone else in the group to use their patents freely.

IANAL, but how is this a good thing? What's the obvious thing that I'm missing?

Joining doesn't add immunity, just uncertainty

[Anonymous Coward]

A lot of posts and the summary seem to be reading this as an attempt to provide absolute protection to a company, at which it would fail in the case of a clear cut patent, since a patent troll would never join.

However, and please correct me if I'm wrong, I thought the purpose of such organizations was to muddy the waters such that you become too large of a cost for a patent troll.

The logic goes something like this. If I'm a lone company with few patents in the field of my product, I have little to stand on in court, and correspondingly the cost of lawyers to the troll is fairly small. By joining a consortium that has a bunch of similar patents to the one I'm claimed to be infringing, it requires a hell of a lot more lawyer time to figure it out, and increases the risk of losing for the troll to the point where the risk vs. return ratio isn't nearly as compelling.

For instance, the purchase of patent portfolios by Google was usually explained to me as a way to make the legal situation so complicated that suing was just unappealing.

Re:Auxiliary Patent Office?

[slew]

The problem with patents is that they cost a lot of money to obtain. It would make sense, that for defensive purposes, we establish an auxiliary office (or organization) where ideas can be publishes and searched as "prior art" without having to have the $10ks of dollars it takes to get a patent. Such a warehouse would accept contributions of ideas from everyone, at minimal (or no cost).

I don't think this would work. First of all, the patent office doesn't spend much time doing searches for prior art. The $10K fee is basically enough to keep the "rif-raf" out which is the problem you would have if you didn't have any barrier to submission or resources validate to your proposed data base(e.g., how do you get people to not submit ideas covered by other people's existing patents which would pollute the data base?)

there is no such thing in practice as a "defensive patent".

Quite true, patents are first strike and counter-strike weapons, not defensive weapons. Counterstrike is only for deterence, not defense.