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 my former EFF colleague Jason Schultz (who started EFF's Patent Busting Project) and my former USC colleague 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.
“The idea is if you want to be part of this network of defensive patent people, you are committing that all of your patents, every single thing you’ve done, will be available royalty-free to anyone who wants to take a license, if they commit to only practice defensive patent licensing,” Schultz said today in Boston at the Usenix conference on cyberlaw issues. “As long as they don’t offensively sue anyone else in that network, everything’s cool.”
The commitment is both daunting in that it requires submitting all of a member company’s patents to the pool, and forgiving in that members can still sue the pants off non-members. Schultz said his team thought long and hard about the exact implementation of the Defensive Patent License.
The “all-in” provision was put in place to prevent companies from joining the network while only providing their lamest patents. The ability of DPL members to sue non-members, meanwhile, preserves the right to monetize inventions. It also keeps members on a level playing field with non-members.