Defensive Patent License

= "operates as a club rather than a public grant -- an organization commits all their patents to the DPL commons, or not, and the beneficiaries are others making the same commitment." [1]

Description

Mike Linksvayer:

"in short:

DPL users grant a royalty free license (except for the purpose of cloning products) for their entire patent portfolio, to all other DPL users. This grant is irrevocable, unless the licensee (another DPL user) withdraws from the DPL or initiates patent litigation against any DPL user — but note that the withdrawing or aggressing entity’s grant of patents to date to all other DPL users remains in force forever.

Participation is on an entity basis, i.e., a DPL user is an organization or individual. All patents held or gained while a DPL user are included. But the irrevocable license to other DPL users then travels with individual patents, even when transferred to a non-DPL user entity.

An entity doesn’t need any patents to become a DPL user.

DPL doesn’t replace or conflict with patent peace provisions in modern free/open source licenses (e.g., Apache2, GPLv3, MPL2); it’s a different, complementary approach.

It may take years for the pool of DPL users’ patents to be significant enough to gain strong network effects and become a no-brainer for businesses in some industries to join. It may never. But it seems possible, and well worth trying.

Immediately, DPL seems like something for organizations that want to make a strong commitment, but a narrow one (only to others making the commitment), to patent non-aggression, ought to get on board with. Entities that want to make a broader commitment, including those that have already made complementary commitments through free/open source licenses or non-aggression pledges for certain uses (e.g., implementing a standard), should also get on board." (http://gondwanaland.com/mlog/2013/11/16/dpl/)

History

Mike Linksvayer:

"History

Last year I’d read Protecting Open Innovation: The Defensive Patent License as a New Approach to Patent Threats, Transaction Costs, and Tactical Disarmament (by Jennifer Urban and Jason Schultz, also main authors of the DPL 1.0) with interest and skepticism, and sent some small comments to the authors. The DPL 1.0, available for use now, incorporates some changes suggested in A Response to a Proposal for a Defensive Patent License (DPL) (and probably elsewhere; quite a few people worked on the license). Both papers are pretty good reads for understanding the idea and some of the choices made in DPL 1.0.

Two new things I learned yesterday are that the DPL was Internet Archive founder Brewster Kahle’s idea, and work on the license started in 2009. Kahle had been disturbed that patents with his name on them that he had been told were obtained for defensive purposes while an engineer at Thinking Machines, were later used offensively by an entity that had acquired the patents. This made him wonder if there could be a way for an entity to commit to using patents only defensively. Kahle acknowledged that others have had similar ideas, but the DPL is now born, and it just may be the idea that works." (http://gondwanaland.com/mlog/2013/11/16/dpl/)

Discussion

Julie Bort:

"Two law professors from UC Berkeley have come up with a novel idea to protect open source developers from patent bullies. They call it the Defensive Patent License. They hope the DPL can address the objections FOSS developers have with patents the way the GPL addressed them for copyright.

Open source developers notoriously shy away from pursuing software patents. The concept is ugly to them.

“At Gnome, pretty much our whole community is anti-patent. They think they are evil. They think they will hurt them,” explained Stormy Peters, executive director of the Gnome Foundation, at a conference on Open Source and Patents held by the Silicon Flatirons, in Boulder last week.

But without patents of their own, FOSS developers have limited their defense against patent bullies, those seeking to stop innovation by filing patent infringement suits. And to some extent, having no patents makes them vulnerable to patent trolls, those who make no product and buy patents to collect royalties. So says the DPLs creators, Jason Schultz and Jennifer Urban, law professors and directors of UC Berkeley's Samuelson Law, Technology & Public Policy Clinic.

But when a company has its own patents, “there are interesting ways to defend against patent litigation, especially defensive patents and cross licensing,” says Urban.

The DPL is similar to the concept of a defensive patent pool, but is not the same . The DPL is a bit more radical. It requires a bigger commitment from its members than the typical toe-in-the-water kind of pool, says Jason Schultz, former staff attorney at the Electronic Frontier Foundation. “The perception is that bigger companies only commit their least-effective, least-important patents to a patent pool,” he says.

Schultz isn't pointing fingers at any particular pool. However critics of IBM’s open source patent pledge often said it didn't cover the patents most relevant to the FOSS community.

So if the DPL technically isn’t a pool, what is it? “A distributed network of patent owners” who grant a standardized license to those in the network “that commit their patents to 100% defensive purposes,” Schultz adds. The concept is similar to the GPL which also isn’t a pool but “a distributed network of copyright owners” who have standardized on a license, he says.

The DPL is still a work in progress.

But so far, Schultz and Urban have worked out the following rules for the DPL:

• Members of the DPL would make a business decision that they are obtaining patents strictly for defensive purposes and not because they want to sell licenses or go on the offensive with lawsuits.
• Members of the DPL contribute all of their patents in their patent portfolio – they don’t pick and choose (and this is what differentiates it from other defensive patent pools).
• Members of the DPL allow all other members to use its patents without royalty and without fear of patent infringement lawsuits from other members as long as a member does not file offensive lawsuits or remove their patents from the DPL.
• Members may choose to leave the DPL but cannot revoke the royalty-free license from members who used it during the time the company was a member.
• Members that join after a company leaves would not have royalty-free access to a former member’s patent portfolio.
• The royalty-free cross licensing applies only to members of the DPL. Members are free to pursue royalties or lawsuits with companies outside the DPL.

All the important details have not been worked out. For instance, Schultz and Urban haven’t yet figured out if DPL membership could legally be applied to a patent that changed ownership from a bankruptcy. Bankrupt companies are a prime source for trolls to obtain patents.

While a giant company like an IBM wouldn’t likely join (wouldn’t offer all of its patents to DPL members royalty free), Schultz points out that all the same legal risks exist with a giant outside the network whether a start-up joins the DPL or not.

In the pool, the company gains protection from a larger number of patents and gains access to more licenses than going it alone.

The DPL probably isn’t perfect (as the GPL isn’t) is a great example of the kind of creative thinking coming to the defense of FOSS and open source start-ups, although proprietary software makers could join the network as well." (http://www.networkworld.com/community/node/60939)