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
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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