The Defensive Patent License makes patents less evil for open source

Two law professors are developing a software patent license in the image of the GPL

Two law professors from UC Berkeley have come up with a novel idea to protect open source developers from patent bullies. They call it the Defensive Patent License. They hope the DPL can address the objections FOSS developers have with patents the way the GPL addressed them for copyright.

Open source developers notoriously shy away from pursuing software patents. The concept is ugly to them.

“At Gnome, pretty much our whole community is anti-patent. They think they are evil. They think they will hurt them,” explained Stormy Peters, executive director of the Gnome Foundation, at a conference on Open Source and Patents held by the Silicon Flatirons, in Boulder last week.

But without patents of their own, FOSS developers have limited their defense against patent bullies, those seeking to stop innovation by filing patent infringement suits. And to some extent, having no patents makes them vulnerable to patent trolls, those who make no product and buy patents to collect royalties. So says the DPLs creators, Jason Schultz and Jennifer Urban, law professors and directors of UC Berkeley's Samuelson Law, Technology & Public Policy Clinic.

But when a company has its own patents, “there are interesting ways to defend against patent litigation, especially defensive patents and cross licensing,” says Urban.

The DPL is similar to the concept of a defensive patent pool, but is not the same . The DPL is a bit more radical. It requires a bigger commitment from its members than the typical toe-in-the-water kind of pool, says Jason Schultz, former staff attorney at the Electronic Frontier Foundation. “The perception is that bigger companies only commit their least-effective, least-important patents to a patent pool,” he says.

Schultz isn't pointing fingers at any particular pool. However critics of IBM’s open source patent pledge often said it didn't cover the patents most relevant to the FOSS community.

So if the DPL technically isn’t a pool, what is it? “A distributed network of patent owners” who grant a standardized license to those in the network “that commit their patents to 100% defensive purposes,” Schultz adds. The concept is similar to the GPL which also isn’t a pool but “a distributed network of copyright owners” who have standardized on a license, he says.

The DPL is still a work in progress. But so far, Schultz and Urban have worked out the following rules for the DPL:

  • Members of the DPL would make a business decision that they are obtaining patents strictly for defensive purposes and not because they want to sell licenses or go on the offensive with lawsuits.
  • Members of the DPL contribute all of their patents in their patent portfolio – they don’t pick and choose (and this is what differentiates it from other defensive patent pools).
  • Members of the DPL allow all other members to use its patents without royalty and without fear of patent infringement lawsuits from other members as long as a member does not file offensive lawsuits or remove their patents from the DPL.
  • Members may choose to leave the DPL but cannot revoke the royalty-free license from members who used it during the time the company was a member.
  • Members that join after a company leaves would not have royalty-free access to a former member’s patent portfolio.
  • The royalty-free cross licensing applies only to members of the DPL. Members are free to pursue royalties or lawsuits with companies outside the DPL.

All the important details have not been worked out. For instance, Schultz and Urban haven’t yet figured out if DPL membership could legally be applied to a patent that changed ownership from a bankruptcy. Bankrupt companies are a prime source for trolls to obtain patents.

While a giant company like an IBM wouldn’t likely join (wouldn’t offer all of its patents to DPL members royalty free), Schultz points out that all the same legal risks exist with a giant outside the network whether a start-up joins the DPL or not.

In the pool, the company gains protection from a larger number of patents and gains access to more licenses than going it alone.

The DPL probably isn’t perfect (as the GPL isn’t) is a great example of the kind of creative thinking coming to the defense of FOSS and open source start-ups, although proprietary software makers could join the network as well.  

Given what you've read here, would you use the DPL?

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