Defensive Patent License: judo for patent-trolls

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.

“Defensive Patent License” created to protect innovators from trolls

• [Pat Wisking]

  I don’t see how this protects anyone against trolls… true trolls are companies that own a portfolio of patents, and only exist to profit from lawsuits or settlements. They will never opt in to such a scheme, and can’t be countered with patents since they don’t actually produce anything of value.

  The software giants won’t opt in for a few reasons. They can’t afford to an agreement that forces them to license their bread and butter patents, they are restricted in suing other companies in the pool they feel are legitimately infringing, and they can afford the lawsuits.

  • [corydodt]

    It’s worse than that, in fact. Joining the DPL means you can exercise exactly the kind of abuse the patent system was intended to defend against, against other members, penalty-free. Just go “all-in” with whatever lame patents you have, grab a few juicy patents off the DPL table, and produce whatever it is they patented. They can’t sue you.

    • [foobar]

      I don’t think you grasp the concept of defensive patents; they’re taken out not for the purpose of stopping others from innovating, but to counterattack if others try to do so to you.

      We’re long past the point where patents protect innovation. These days they’re for making a rectangular smartphone or recognizing that a phone number is a phone number. You take them out now for the purpose of stopping legitimate competition.

      • [xyzzy123]

        You’re right about using patents defensively.  If you own a portfolio of patents in a field, then you can threaten mutually assured destruction — if you sue me, I’ll hit you back with counterclaims for patent infringement.

        To do so, however, you actually have to own the patents in question.  That’s the fatal flaw of this model — it’s only granting licenses for the patents, not ownership of the patents (i.e., assignments).  A license just gives you permission to use someone else’s patents.  It doesn’t give you the right to sue a third party (like a patent troll) for infringement under those patents, so the licensed patents can’t be used defensively in litigation.

        Also, the fact that you have a license to practice one set of patents isn’t a defense in an infringement suit brought under a different set of patents.  E.g., if a patent troll owns Patent A, and you receive a license for a kinda-similar Patent B, you could still be on the hook for infringement of Patent A.

        Consequently, this proposal doesn’t provide any real “defensive” power in litigation.

        • [Mark Hayden]

          you all still don’t get it.  This is called DEFENSIVE patent license.  You are completely missing the point.  You are DEFENDING AGAINST being sued, you DO NOT NEED THE RIGHT TO SUE.  The idea is that if an NPE (ie. a patent troll) sues you that this patent pool could grant you a license to a conflicting patent.  “Suing a third party” is OFFENSIVE action.

          You’re argument assumes the NPE and/or troll’s patent is not worthless and has some sort of merit.  This is to defend against merit-less patents like Apple applying roundrects to smartphone cases or Amazon patenting a button that bypasses a virtual shopping cart.  By obtaining a DPL you are granted full access to the patent pool, which would be a reserve of equally stupid or broad patents which overlap in scope (there are lots of those).  This would immediately make court challenges more work for the troll, especially NPEs who count on as little resistance as possible, plus it increases the risk that the troll’s patent will be invalidated or otherwise rendered worthless.

          From what I can tell however, it really does depend on getting companies on board and building up the pool.  Perhaps Google would do this.  IBM may contribute non-strategic patents.  Apple, the biggest troll on the planet that isn’t an NPE, would not go near this, and Microsoft would not be all that enthusiastic either, and with there currently a patent-valuation-bubble fully inflated right now, buying them into the pool is not really financially feasible at this time.

      • [corydodt]

        No, I know exactly what defensive use of patents mean.

        You’re wrong if you think patents are all for producing rectangular phones. There are a lot of those, but there are also still a lot of patents for genuine innovations that need protection. By joining the DPL, you’re giving up your right to protect those innovations. A patent must provide exact instructions on how to build your technology, so what you’ve now done is given everyone in the DPL the right to follow your exact instructions and build whatever it is you built.

        If you truly don’t value the technology you patented (or if you only patented it defensively), then that’s fine. But if you place any value on any patents in your portfolio, you have to trust all the members of the DPL not to abuse them.

        There’s also the problem xyzzy123 brought up.. you cannot license the right to sue (this is now settled case law).

        • [foobar]

          No, you’re misusing the term.

          A defensive patent is one that you don’t intend to use to prevent others from doing whatever is described, but hold it in reserve in case someone tries to use their patents against you.

          A lot of companies have been saying that they only hold patents for protection. This just lets them legally bind themselves to that position.

          Really, you shouldn’t be able to use patents offensively in the first place. Stopping someone from doing something never advances the sciences and useful arts.

      • [corydodt]

        No, you’re misusing the term. A defensive patent is one that you don’t intend to use to
        prevent others from doing whatever is described, but hold it in reserve in case someone tries to use their patents against you.

        How am I misusing the term? I know that. There are actually two senses in which a patent can be defensive: to hold as ammunition against a competitor’s lawsuit, and to prevent someone else from getting this patent first. I never made reference to the meaning of “defensive patent” so I don’t know why you think I’m using it incorrectly.

        A lot of companies have been saying that they only hold patents for protection. This just lets them legally bind themselves to that position.

        Fair enough. See other comments in this thread as to why I think an organization would be dumb to actually do so.

        Really, you shouldn’t be able to use patents offensively in the first place. Stopping someone from doing something never advances the sciences and useful arts.

        See current Funnyjunk vs. The Oatmeal internet battle, for reasons why protecting intellectual property actually does sometimes advance the sciences and the useful arts. A world in which anyone has free reign to take your shit and do whatever they want with it is a world in which innovation is stifled. Matthew Inman managed to create something funny out of it, but most creators would be bogged down in fighting that shit, or give up cartooning as a bad business.

        Your argument is essentially that patents should be abolished. I understand why you feel that way, but if we don’t find a useful middle ground the pendulum of corruption will just swing completely the other way; instead of patent trolling, we’ll have invention theft.

        • [foobar]

          The Funnyjunk vs. Oatmeal battle actually illustrates the opposite. Matthew hasn’t been able to stop Funnyjunk from outright taking his stuff, yet he does just fine anyway.

          My preferred patent system would be a a sales tax to the end consumer. Patent holders could make claims against a given product for a share of that tax, but couldn’t prevent it from being sold. It would have the added benefit of forcing patent holders to fight amongst themselves over the validity and value of their patents, rather than with people actually making things, and would put them in the position of encouraging people to use their idea. Non-commercial and/or open source projects would be unimpaired.

    • [Mark Hayden]

       OK I’m not sure I follow your argument.  If you are an innovator who is interested in sharing of IP without the risk of litigation why would you care if others use your patent?  Those who participate in DPL would be those who believe in collaboration and want to fight the monopolies on innovation imposed by the patent system.

      The DPL is the GPL of patents if I understand it right.  With GPL if you “grab a few juicy lines of code off the GPL table” and use it to create a closed application that you sell or otherwise redistribute to othersy ou are violating the GPL which is illegal (copyright violation/”piracy”).  Similarly, if you join the DPL patent pool you can’t sue others in the pool–they have the same rights to ALL the patents in the pool–theirs and ALL others, just as you do–to yours and ALL of theirs.  It uses patent law to protect against abuse of patents.

      And so what if you use a DPL patent that you don’t own as a basis for your product?  So can everyone else!  That is perfectly OK, because all OTHERS can use YOUR patents for THEIR products too.  The “quid-pro-quo” aspect of a DPL would mean that the horse trading/pissing matches in court that benefit only lawyers goes away.  That is the whole point.  The patent system has in recent years completely abandoned its original purpose, which was to encourage innovation by reducing risk to hard-working inventors through thte granting of a limited, time-bound monopoly.  Inventions had to be “real”.  Today patents for “fake” inventions (business processes, industrial designs, etc) make up significantly all new patents (for every genuine invention there are probably 10 silly patents granted), and patents are seen as a business strategy to stifle innovation by others.  The DPL’s whole point is to neuter patents through the use of patent law.

      Basically, the scenario you describe is EXACTLY WHAT IS INTENDED by the DPL.

      • [corydodt]

        Well then it’s a bad idea. The GPL doesn’t require you to GPL every bit of code, past present and future. This does.

        Some patents have value. The patent office has not “completely abandoned” its original purpose. Has it gotten lazy and overwhelmed? Certainly. But it’s still issuing patents because the ideas being patented have value.

        You may certainly believe that some of your patents are required for defensive reasons and only have value in that sense. I doubt very seriously that any organization with a large body of patents believes that all of them fall into that category.

        • [foobar]

          Having value is not mutually exclusive with being obvious.

  • [Stephan Kinsella]

     Agreed. I am not sure how this helps stop trolls at all. Not that they are the main problem. http://c4sif.org/2012/06/defensive-patent-license-created-to-protect-innovators-from-trolls-probably-wont-work/

• [senator]

  yes, this will protect a company exactly how? I don’t see the legal protection. Please explain, this abstract just sounds like cheerleading.

  • [Tynam]

    As I understand it (ObIANAL here), there are two plans here:

    * Company A designs Useful Product A1.
    * Company A get to use all the patents in the pool, so they can just use the right design instead of messing about with cross-licensing agreements with every related manufacturer in the space.

    And the anti-troll defence plan:

    * Company A produces Useful Thing A1.
    * Patent troll sues A because A1 uses (something covered by ridiculously bad troll patent B)
    * Company A dives into big communal pool and produces patent C which also covers the (whatever).  With a big enough pool, and given how clumsy the patent office is, this is likely to work.
    * Patent office is forced to admit they issued two conflicting patents, instead of being able to carelessly enforce the bad one.

    Bad patents are overbroad; that’s part of the problem.  That also means they’re easy to conflict with.

    • [senator]

      thanks! that makes sense.

• [Ab Eeyore]

  I think there must be some element of the explanation missing.  If I were to guess, it is that the patent licenses are available royalty free IFF you are defending against a patent suit, or something siimilar.  Otherwise, I would have to agree… nobody with a strong portfolio would ever sign up, and without one or two powerhouses on board, this really is unlikely to go anywhere.

  Can anybody confirm?

  • [Bevatron Repairman]

    I think it has to be that.  Otherwise I just strategically join the pool in order to commercialize the patent rights of other members.

  • [Mark Hayden]

    The article assumes understanding of how GPL works.  DPL is to patent law as GPL (The GNU Public License) is to copyright law.

    Patent holders who join the DPL patent pool grant GPL-style licenses to their portfolio to all who use the invention.  In other words, if you incorporate a DPL-licensed patent into your invention or product,  you are required by the DPL to let others apply the same invention to their products too.  Basically, in return for letting others “borrow” your idea/patent for free, you get unfettered access to all other DPL patents too.  DPL licensees can build upon each others innovations the way the Free software community can build upon each others computer code.

    If a large enough patent pool can be made then there is a better chance that if you are sued by a patent troll you have license to a DPL patent that overlaps the closed patent used by the troll.  This significantly increases the risk to the troll.  Presently if the troll loses the case the troll patent is invalidated or the interpretation of its scope is narrowed.  I have not read the DPL itself right through, but if it has the right conditions in it, a troll on the losing end of a conflict with a DPL patent could mean that a bunch of related troll patents could be ordered to be available in the DPL pool.  The GPL for source code states that if you throw a chunk of GPL code in your work, your work must be made available under the terms of GPL too.  The DPL looks like it treats a WHOLE PORTFOLIO as “the work”, and if a troll is found by court to have filed a patent conflicting with a DPL patent, it could be ruled to make its whole portfolio available via DPL!  That would be quite awesome if such an agreement holds up in court.  Imagine a patent troll losing in court and actually BEGGING for their own patent to be invalidated to preserve the rest of its portfolio!

    I have my doubts about this too however.  It does seem to rely on amassing a huge pool of patents and how many companies out there would just “give up” their entire portfolio to the DPL pool when we are at the height of the patent bubble?  Maybe Google?  Not may others who are big players, so it means a whole lot of smaller players banding together.  Alternatively, the big companies can sell/transfer their “non strategic” patents into a separate entity the way they sometimes do now, except this would be an ANTI-troll NPE.  The problem is that the “strategic” ones that would be best put into DPL would be the least likely ones to be put there, especially with th likes of Apple hoarding and trolling the rest of the world with no mercy.  If it worked it would be great, but there are huge hurdles here.

• [Prent Rodgers]

  Great idea. It’s all about cross licensing. I hope that this would restore the information technology patent system to the way it was in the 80′s. Back then, IBM owned thousands of patents. Before any major product was released, IBM required that it pass through an internal patent check committee. The engineering team looked at the new product to ensure that no one else’s patent was infringed. If it was discovered that some aspect of the new product infringed, IBM would acquire an example of the product, take it apart, and find something in it that infringed an IBM patent. They always found something. Then, they’d call the company from whom they needed a cross licensing arrangement, and offer not to sue in return for a cross licensing agreement. Surprise, they always agreed. And the result was a paradise of cross license deals that persisted from around 1978 to 1998. After that, we had the patent trolls who did not participate in the game.

• [Bobsyeruncle]

  You may still need hardware patents to protect your investment while you scale up for mass-production, but I really don’t think you need internet patents to innovate.   That’s certainly not why companies collect patents.  The biggest reason is for protection against other companies trying to litigate against you.  They hold up their patents, you hold up yours and if you’re holding the right ones they don’t have a case.

  I believe this was prompted by patents enforced by trolls for things like “browser plug-ins” (Eolas), in-game purchases (Gametek), in-app purchases (Lodsys), etc.   The software patent system is so screwed up, people are getting new patents for applying the same idea to a different technology.

  The bigger issue is that right or wrong, it can cost millions in litigation to defend your company.  But maybe the pool of patents can convince a troll to find an easier fish to fry.

• [Kaleberg]

  I don’t know if this is the right mechanism, but it makes historical sense. After the debacle of the Wright Brothers incredibly broad patents on aircraft stifled the American aviation industry for a generation while Europeans ignored or limited the Wright patents and built their own airplanes, a lot of American companies realized that the same thing could happen with radio. Marconi himself was involved in the creation of the original corporate patent pools which let useful radio transmitters and receivers be built without one troll or another barricading a critical technology. Radio was a big new thing, but the real innovation was the patent pool. (There were a lot of small companies infringing on the big patent pool and producing low cost radios called “jalopies”, but most of these companies were short lived and just produced a batch or two and then vanished.)

  It’s rather obvious that the patent system is working against innovation these days. Software patents basically let one patent ideas, and a lot of patents are so broad as to be meaningless. The whole idea of novelty rewards stupidity and ignorance as so many important innovations were considered “intuitively obvious” and not worth even publishing by the original pioneers, but are now being rediscovered by less brilliant sorts and considered innovative and novel. I used to browse the old theses in the Barker Engineering Library at MIT and could find all sorts of novel ideas suitable for patenting there. Even a lot of undergraduate theses, basically advanced term papers, were chock full of stuff. I’m surprised the place isn’t crawling with patent trolls even now.