The "Defensive Patent License" an Open Defensive Patent Pool 98
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."
patent holders only? (Score:5, Interesting)
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.
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Just file a patent for your version of implementing a hash-sort for arbitrary classes that inherit from 'integer' using Java on an Android phone with a touchscreen and wait 5-7 years for your patent to be granted. Then you're in the club.
Fixed that for you.
Re:patent holders only? (Score:5, Funny)
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.
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I think Twitter already has a patent on that.
Nathan
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Although you could implement taking a shit on the internet via twitter you would want the patent vague enough that you could still sue anyone who implemented the idea of taking a shit on the internet, no matter which way it was implemented.
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In the 70s you just had to add a digital clock to something
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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? (Score:5, Insightful)
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?
Don't take one of mine! (Score:2)
Re:patent holders only? (Score:4, Interesting)
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.
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It's not Patent Holders Only. The current text of the license, as found on Github [github.com], 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.
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It could interest other people than the small companies you mention. Me, for instance.
Some 10 years ago, I imagined a way to offer an internet connection freely in exchange of mandatory ads that appeared so ugly to me (I hate ads), and at the same time so easy to deploy, that what I found to try preventing it was to patent the process.
I'm no patent maniac, I didn't extend that patent outside my country, but at least here it is now unfeasible (I'll never grant a license), and elsewhere, due to the publicatio
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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 [arstechnica.com], and continue to sue everybody that way.
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They have to do in in the other order. And they can only pull that trick once.
HTC vs Apple (Score:2)
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?
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This patent pool only helps if both the pool and the patent troll have patents covering the same idea -- if you license the pool's patent, maybe you'll be protected from the patent troll.
Re:HTC vs Apple (Score:5, Interesting)
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.
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 (Score:5, Insightful)
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.
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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.
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I believe the thinking on that matter is that someone in the pool is likely to have an identical or nearly-identical patent. For instance, if a troll sues you for their patent on transmitting movies over the internet, hopefully someone in the defense pool has a patent on, say, transmitting video over the internet.
If it gets enough people in it, they will eventually have a patent on pretty much everything, simply because of how many duplicate patents there are.
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That's not what I said. I said there were two patents on the same patentable idea - by definition, at least one of them has to be invalid. If you have a legal license to one of them, you can fight a troll on the grounds that *their* patent is invalid. Trolls will tend to shy away, simply because they would risk losing their patent - and all they have are patents.
This is, of course, assuming that a) there are enough people in the patent pool, and b) there are enough duplicate patents.
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The idea isn't patented, the claims are patented. A patent is a description of several claims (dependent and independent). Since the claims of two patents were written by different lawyers, although it's possible that a few claims in the claim tree might be fairly similar to another patent, they are unlikely to be exactly the same. However, even if two claims are essentially the same, two patent claims aren't like matter and anti-matter and annilate each other. Whoever has the superior filing date will s
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But more; If someone completely different has a patent; someone you don't know whatsoever; you can still use that patent to invalidate the patent troll's patent. It makes no difference whatsoever whether you are in the patent pool that permits you to use that patent or not. If that's all you are going to use patents for then you might just as well publish the ideas you have in well known journals or even just on the internet (make sure archive.org picks them up). Once you've done that a
Re:worthless against trolls (Score:5, Informative)
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 (Score:4, Interesting)
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.
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Why do you have to counter-sue? Why would I want to waste my time and money on that? If you have license to patents that cover the same thing you are being sued for, you have a much stronger defense. Joining a pool sounds better than not having that defense, and costs less than having to get my own patents. I just want to make cool shit, and welcome competition, because that will help me improve my products. You are thinking from the point-of-view of a litigating patent lawyer, who doesn't make money unless
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If you have license to patents that cover the same thing you are being sued for, you have a much stronger defense.
First, drop-in replacements for patents don't always exist (think gif). Second, it wouldn't matter to a patent troll if they did, because they're gambling on extortion anyway.
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If you have license to patents that cover the same thing you are being sued for, you have a much stronger defense.
a) By definitiion patents can't be for exactly the same thing. If they were, the first one filed would be "prior art" for the second one. b) a product can infringe multiple patents. The fact you have a license for one patent doesn't have any influence over whether you need a license for a different patent.
Counter suing is the only weapon currently available to reduce the incentive for software developing entities to their patents involved in lawsuits. It's very important to note that you may have to co
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What defense is that? I'll note that even "practicing the prior art" is not a defense to patent infringement. Cordance Corp. v. Amazon.com, Inc., Case No. 10-1502 (Fed. Cir., Sept. 23, 2011) (Linn, J.).
Which is great if the patent owners don't mind free-riders. However, if all you have is
Re:I'm actually an in-house lawyer (Score:2)
Heh - if you'll permit the puns.
You are not Our Attorney yet we really appreciate you being "our attorney". This is great "legal advice" without being Legal Advice.
So you basically busted the entire concept behind the story, which then opens up the real can of worms, which is, "why did it take you to bust it when the EFF has a few lawyers of their own on speed dial?"
The best I can think of is this is the "first feeble step in the defense of patent madness". Clearly we're coming to the agreement that there a
reverse-troll, join or we troll you (Score:2)
What if we did a reverse-troll, so either companies join DPL or DPL files troll lawsuits until they join. It's like MPEG LA but not just for video.
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What if we did a reverse-troll, so either companies join DPL or DPL files troll lawsuits until they join. It's like MPEG LA but not just for video.
That's basically RPX Corporation [wikipedia.org], which I mentioned and replied to an AC.
But the DPL doesn't have the mechanisms to do that. It will be afflicted by collective action problems. It doesn't have "resources" to enforce such behavior. And on and on...
There are plenty of other style of patent pools -- like standards-based patent pools -- in which members all contribute their "essential patents [or claims]" and then make them available on a "reasonable and non-discriminatory basis" to everyone wanting to use the
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True, in a sense. Their acquisition model is the "defense". Under their model, let's say they have all the major players in a targeted market (cell phones) in as their clients and they're all the same people also targeted by a patent troll. It might be cheaper/easier to simply sell out to RPX than to sue them all.
RPX also can act to acquire, prospectively, patents that are also likely targets of pate
What about trolls? (Score:1)
This isn't useful if you're sued by a patent troll. You can't counter-sue a company that makes no products for infringement, because they're not actually producing anything that would infringe on a "conflicting patent".
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Is the major difference of this patent pool that it's run by the EFF instead of a board of corporations?
No. The major difference is that the membership is open to anyone who wants to join. It is not a closed club.
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bingo.
Great idea (Score:2)
It sounds great but ultimately useless. A pledge not to sue is nice and all, but what happens if/when one company breaks that pledge? Does their contract terminate rights to the other patents in the pool? Good luck getting that past the corporate lawyers. Is there some financial benefit to playing nice? Is it more than the profit to be made by backstabbing your competitors?
While the thought of "in this sandbox we're playing nicely together" is joyously innocent, I can't see it working too well in practice.
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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.
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So it's best to just stay out of the pool entirely, and handle your own legal battles.Then when you're big enough, you can sue a weak member of the pool, and hope some allies don't come to its rescue.
This is the opposite of the mutually-assured-destruction game we have now. Rather than everyone in one group being able to destroy each other, the group members are the only ones they can't attack, and if they're attacked by an outside threat (including patent trolls, who have no vulnerability to being attacked
Interesting idea (Score:2)
need ownership for use as judical tool. (Score:2)
that you have a _license_ to a patent from the patent pool doesn't enable you to start suing people for infringing on those patents.
the pool itself with it's donated(the pool would have to have ownership of them) patents would have to sue whoever is suing the guy needing protection.
so the pool would need to transfer patents back and forth quite a lot.
And the selling point is...? (Score:5, Insightful)
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?
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IANAL, but how is this a good thing? What's the obvious thing that I'm missing?
You are making the assumption that patents are registered either to cash out on licenses or to protect an invention. The sad truth is that a lot of companies file patents only as a defensive weapon. I wouldn't be surprised if Google joined such an alliance. They have stated their opposition to the patent game, their licenses on the WebM standard is very interesting in that respect ("If you sue us, you can't use any of the patents we freely offer to anyone")
Patent trolls will be unaffected (and really, eith
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The defensive patent idea is a fair point, and one that I neglected to consider. That said, I don't see it as a long-term solution. Contrary to some here, I believe that the idea of the patent system has merit and that it, or something else, is necessary to protect and encourage innovation. If everyone gets patents purely for defensive purposes and makes them available to others who do so as well, the incentives for innovation decrease while the incentives for copying/ripping off increase. That works for a
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I haven't thought through it enough to entirely agree, but at least tentatively I would be in support of forbidding software patents. That said, this DPL appears to deal with patents in general, not just software patents, hence my cause for concern.
won't help against patent trolls (Score:2)
Like most such schemes (and this is not the first), this won't help against patent trolls, as they don't use patents, and are thus immune to the threat of countersuits. A patent troll is sort of the equivalent of what the SCO Group has become: a company which makes nothing, and whose entire purpose is litigation.
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Like most such schemes (and this is not the first), this won't help against patent trolls, as they don't use patents, and are thus immune to the threat of countersuits. A patent troll is sort of the equivalent of what the SCO Group has become: a company which makes nothing, and whose entire purpose is litigation.
Well... it just needs IBM to join because they have a business methods patent on being a patent troll.
what if... (Score:1)
sounds great (Score:2)
I was investigating how to start something like this, glad to see I already have some options or at least examples.
Meh (Score:2)
I'm still shocked the Feds went after the Si V folks for collusion, but the end result will only be a wrist-slapping cost of doing business fine. It's a cute ivory tower idea, but the result would only be t
Auxiliary Patent Office? (Score:2)
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've been following and considering the idea of patents as "defensive" for some years and my verdict is it is a rubbish. Pu
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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
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> there is no such thing in practice as a "defensive patent
Here are some counter-examples to your bold statement:
1. http://www.researchdisclosure.com/ [researchdisclosure.com]
2. Provisional patents which cost $100 to file.
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1. Proves it
2. Provisional patents are not patents. And you can get one with no details filed. you just pay the fee and give it a title. It only offers protection if yo u get a patent, and the patent will use the provisional file date. That's all it does. It gets you a date. It does nothing for disclosure.
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What you describe is 'publishing rather than patenting'.
There already are many ways to do it; the trouble is, when you really have found something original and brilliant, and you start developing it alone, it may really be easier to a large company to just copy what you disclosed, with more efficiency than you or your small team.
This is why, to real inventors, 'just publishing' won't do.
Other than this, you say that 'anyone shelling out money to obtain a patent intends to make money off of it'.
I don't know
Joining doesn't add immunity, just uncertainty (Score:2, Informative)
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
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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....
How so? The patent troll doing the suing has only to examine the claims of their patent, examine the device and show that there is a match. The other patents are completely irrelevant.
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.
this is for a very specific case where a huge company with lots of software business (Microsoft) has been stupid enough to start a patent war. Google's is a winning move becuase Microsoft lives in fear of having a year or two during which they are not allowed to sell MS Windows and/or MS Office. Whilst Google's business co
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This seems like an antitrust violation in the making.
The key thing is that it's open to everyone and it's likely to benefit the consumer. Even if the companies could just claim the believed it would help the consumer that would be enough. Anti-trust law does not apply here. Think of, for example, open standards like GSM or Ethernet. A big bunch of "competitor" companies agree to work together. However, that's okay because it's for everyone's benefit and anybody can join.
Opt out entirely (Score:2)
What we need is a way for individuals and companies to opt out of the intellectual monopolies system altogether. Something like "I promise never to asset an intellectual monopoly against anyone (except defensively); in return, I obtain the right to never be sued". It really needs a whole country to be brave enough to unilaterally scrap the patent system: and whichever one does this first will make a fortune from investment. Think "tax-haven" but where's it's really a "freedom to innovate haven".
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Why would this make a fortune from investment?
Suppose I am an investor, say with 10 million in capital to invest. I like this company's product.
So now I have two choices:
1. Invest in this company.
2. Copy their product and start my own company.
In case 2 I own 100% of the equity in the company plus full control of the company's personnel.
Seems to me a good case for 2 being the preferred course of action can be made.
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You have it backwards. The fallacy with patents is to always see oneself as the person with the patent using it so no one "steals" your idea.
Actually, the risk is that if you have a company with a product, you will be destroyed by a "troll" who sues you.
[Also, the concept of owning ideas is itself wrong: think "standing on the shoulders of giants"]
I accept that if we scrap the patent system, we would have no way to protect small companies against cloners (though they'd still have first-to-market advantage).
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No, I don't have it backwards. The original statement was that without the current IP system these companies would suddenly be awash with investment financing.
That's clearly not true. There is no reason to invest in something that you can get for free.
And of course this also neglects the issue of exit strategy - for many small companies the end game is selling out to a large company. Without IP I think that's much less likely to occur. Which of course will reduce the attractiveness of the whole process to i
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Seriously...there is no positive side to patents excepting the sense of mutually assured destruction. Patents are good for lawyers, but hurt innovators, consumers, and the development of technology. (It's true that the current system is badly broken, but I'm not advocating scrapping it because it's too hard to fix; I'm advocating scrapping it because it's wrong in principle and in practice).
Yes, it's true that investors like to see patents - but if nobody had them, that wouldn't matter.
Also, remember that m
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>I'm advocating scrapping it because it's wrong in principle and in practice).
Remember what a patent is - a contract between the inventor and the government where in exchange for a full disclosure of the invention the government grants a limited time license allowing the inventor to prevent others from practicing the invention.
Prior to patents inventors did everything possible to keep their inventions and the principles behind them secret through contracts, trade secrets and obfuscation. Imagine the mode
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Well, that's true excepting that the patent system is used to prevent independent invention. The idea (originating from techniques for making stained glass iirc), is that in return for a long monopoly, the inventor of a technique gives away the secret so that his competitors can also use it 25 years later. But the problem is really that we aren't preventing reverse engineering; we're banning independent thoughts. I'd accept raising the bar, but we'd have to really really strengthen the "obvious to one skill
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Been there done that. (Score:2)
Such a thing already exists for Linux development companies.
http://www.openinventionnetwork.com/about.php [openinventionnetwork.com]
A story about a blog entry about a story on ... (Score:1)
Ars?
What The Fuck.
How many slashvertisments for other sites can you put in the first line of a slashdot submission?
Could you seriously not just link us to the one with the actual story in the first fucking place?