Attempting to Vaccinate against Patent Trolls

Attempting to Vaccinate against Patent Trolls

Think of your technology as a cell. For those components to which you don't own a patent, your cell is infected with a dangerous virus. If a nonpracticing entity (NPE), a/k/a a patent troll, decides to go on the patent offensive, then your cell's infection could very well prove toxic.

As recently reported by Ars Technica, Berkeley Law professors Jason Schultz and Jennifer Urban are attempting to create a vaccine against NPEs/patent trolls. Schultz and Urban have created the Defensive Patent License (DPL). According to the DPL's website:

The Defensive Patent License (DPL) is a new legal mechanism to protect innovators by networking patents into powerful, mutually-beneficial legal shields that are 100% committed to defending innovation - no bullies, trolls, or other leeches allowed. It also helps prevent evildoers from patenting open technologies and pulling them out of the public domain.

A commitment to the DPL means a royalty-free commitment of all patents to the DPL membership. Members gain a free license to each other's patents, with restrictive terms against offensively suing co-members. Violators of the offensive restriction face revocation of the group license. The restriction notwithstanding, DPL members can still offensively sue non-members.

In her June 12th blog, Professor Urban discusses the damned-if-you-do, damned-if-you-don't nature of patents and the growing weaponization of patent portfolios:

Without patents to wield in response to claims by other patent-holders, they [companies] are vulnerable to aggressive claims against them. But by bulking up on patents of their own, they are both increasing the rights "thicket" that already exists, and adding to the overall number of patents that may eventually be used as weapons.

Professor Urban goes on to assert that this patent bind can be significantly loosened by guaranteeing the "defensive" use of patents over time. She also highlights Twitter's new "Innovator's Patent Agreement," as a move toward solving this dilemma. 

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