Defensive Patent License Project Aims to Kill Trolls

Patent trolls, companies who exist only to capitalize on patents and sue various technology companies for infringement hoping for quick payoffs or judgements, cost the tech industry and its customers billions of dollars a year. These trolls have no other business plan than to buy or acquire rights to patents that they can then use to launch lawsuits against other companies.

Twitter has made a pledge to not use any patents derived from its employees’ inventions to launch offensive lawsuits against others without the inventor’s express permission. In other words, if you own a patent that you’ve licensed to Twitter as their employee, you can say “no” to any lawsuit they may wish to undertake to enforce that patent.

This is good news, but Twitter is just one small fish in a huge ocean of patent holders in technology. It’s a good example and it wins over the hearts of most engineers, but it’s still not much in the larger scheme of things.

Another option is the newly-minted Defensive Patent License project. This has been in the works for years, but didn’t launch publicly until just a few days ago. DPL’s goal is to create a network of technology innovators who own patents to various tech, but who are willing to allow others to use that to further create new technology without requiring hefty fees or threats of lawsuit.

DPL has an extensive legal document and agreement form that those who join must peruse and sign, but in the end, it works fairly simply.

Co-founder Jason Schultz, a Berkeley Law professor, says that “..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. As long as they don’t offensively sue anyone else in that network, everything’s cool.”

In other words, you join the DPL “club” and everyone in the club has access to your patents and you, in turn, have access to theirs. So long as you don’t violate the simple rules of the club, you will not be sued by anyone else in the club for using their patents but you cannot sue for using yours either. The provisions to not sue others do not affect non-members, so if you are a DPL member and someone not a part of the DPL infringes on your patents, you are still free to sue.

This has several advantages. First, if you’re small potatoes with some good patents, you can now pool your intellectual rights with others who may have better (more commercial) uses for it. At the same time, if someone outside of the group uses your patent without permission, you can ask your DPL friends to help enforce that patent, since collectively, all would benefit.

Obviously, companies who exist only to own patents and use them in litigation are not likely to join something like the DPL. On the other hand, they would have far fiercer competition should they attempt to sue or infringe on someone in DPL who has a collection of powerful friends willing to help back them.

So far, DPL is just an idea that has finally gone public. Prominent lawyers have already given cirtique of the plan and suggest some changes to help it benefit the patent holders more and discourage those with weak portfolios or who are just interested in copycatting others’ patents from joining. Schultz says the criticisms are legitimate, but the idea is sound and, while it will require some tweaking, is ready to go.

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