IP P®OSPE©TIVE

I read an interesting article today in Network World titled “The Defensive Patent License makes patents less evil for open source”.  The article describes the efforts of two law professors and directors of UC Berkeley’s Samuelson Law, Technology & Public Policy Clinic to create a Defensive Patent License (DPL).  According to the article, the DPL is supposed to create protection mechanisms for open source practitioners in the software industry from NPE’s.  While the article reflects archaically upon NPE’s as “trolls” and states that these entities simply “seek to stop innovation by filing patent infringement suits”, the gist of the DPL is quite interesting - and may have some merit.  The effort somewhat parallels that of defensive patent pools, or defensive patent aggregators such as RPX Corp..  In fact, the article states that, Jason Schultz, former attorney for Electronic Frontier Foundation (EFF), attributes to the DPL that it 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 . . .”  Speaking generally about the DPL, the article quotes Schultz as stating that the DPL is ”[a] distributed network of patent owners  who grant a standardized license to those in the network “that commit their patents to 100% defensive purposes.”  According to the article, the following rules will accompany a 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.

 Interesting, but like the GPL I’m not sure it will afford protection from those companies with large portfolios and larger financial resources.  It is basically a defensive aggregator firm without the enforcement commitments and resources to bare defensive teeth in the face of litigation.  Read more about the DPL at Network World.

(pictured here is pottery sold from the shelf of a small shop in Santiago, Chile)