"Patent owners have the power to reduce the excesses of patent law by using an appropriate public license.  The DPL is modeled on the GNU General Public License and the Creative Commons Share-Alike license, which allow and encourage sharing of copyrighted works.  The DPL allows and encourages sharing of patented inventions.  Those who choose to share their inventions make the world a better place, without reducing the commercial value of their patents.  Joining with other contributors, they gradually build a patent commons whose strength can rival proprietary patent pools," said John Gilmore.

"The whole world spends hours per day reading from screens and those screens are the largest battery drain in devices, so I invented these technologies to improve our visual experience and to reduce the power wasted by screens," said Mary Lou Jepsen, founder and CTO of One Laptop Per Child and Pixel Qi. "Pixel Qi failed as a business because the world wasn’t ready for low power devices, but these technologies still enable a path to make phones, computers, TVs, and car consoles look better while slashing power draw and making batteries last days or weeks longer. I am happy to support John and the launch of the DPL."

"John's commitment is a strong step toward building a broad network of patent owners who care about our freedom to access and innovate with technology. DPL patents are pro-innovation and pro-competition" said Jason Schultz, clinical professor at NYU School of law and co-author of the DPL with Jennifer Urban, a clinical professor at Berkeley Law. "The more patent owners that participate, the more benefits are created for DPL users -- and for all people and companies who have no patents."

The DPL is an open source-style patent license that legally and publicly commits its users to protecting the freedom to share and improve patented inventions, among a community of like-minded people.  It also helps to establish a robust body of prior art that deters subsequent attempts to patent the same inventions in ways that restrict access and freedom.

Under the terms of the DPL, anyone in the world can license Gilmore's patents royalty-free as long as they offer the same freedom with respect to all of their own patents and any future patents they may acquire.  They make this offer to everyone else in the DPL community, by simply publishing their own commitment to the License.  One does not need to own any patents to become part of the DPL community. Anyone without patents can make the same commitment and get free use of all DPL-licensed patents.

Further information on Mr. Gilmore's DPL commitment and DPL v1.1 will be discussed on the Announcement Conference Call:

Tuesday, Dec. 9, 1:00 p.m. Pacific Time

Dial-in: 1-866-740-1260 | Access Code: 642 1957

Defensive Patent License

http://www.defensivepatentlicense.org

GNU General Public License

https://gnu.org/licenses/gpl.html

Creative Commons Share-Alike License

https://creativecommons.org/licenses/by-sa/4.0/

Electronic Frontier Foundation

https://eff.org

John Gilmore

http://www.toad.com/gnu/

https://en.wikipedia.org/wiki/John_Gilmore_%28activist%29

Patents licensed by John Gilmore under the Defensive Patent License

http://www.toad.com/dpl.html

http://www.defensivepatentlicense.org/content/known-dpl-users-and-patents

Profs. Jennifer Urban and Jason Schultz walked through the language of the license, showing how it benefits adopters without sacrificing freedom of movement in the marketplace.

Julie Samuels of the Electronic Frontier Foundation finished the presentation with a call to action, asking those in attendance to spread word of the DPL to interested parties and prepare for the DPL Launch on November 7, 2014.

The night ended with cake, champagne, refreshments, and much discussion of the license and its future.

Watch the video of the event at the Internet Archive.

Software engineers have long complained about the perceived overbreadth of software patents, their sometimes trivial or obvious nature, and the fact that software innovation often happens without any need for patent protection. Legal academics and advocates have also criticized software patents, on both doctrinal and empirical grounds. The Supreme Court’s recent ambivalence on the scope of patentable subject matter in Bilski v. Kappos and Prometheus v. Mayo, however, indicates that that these patents are here to stay, at least for now. The American Invents Act shows that Congress also has little appetite for this kind of patent reform.

This situation leaves companies to decide whether to participate in the system by getting patents that may stake out competitive territory and stave off offensive suits now but risk being “weaponized” in the future, or to opt out of patenting. Increasingly, this decision is made by virtue of the danger in which companies find themselves as patent suits increase. Defending against patents wielded by others often requires a company to have its own portfolio to use for defense.

This can put innovative companies in Internet — and software — related industries in a bind. Without patents to wield in response to claims by other patent-holders, they 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. If patents could be guaranteed to remain “defensive” over time, then this bind would be loosened significantly.

This is why we find Twitter’s new “Innovator’s Patent Agreement,” announced last month, to be an interesting move toward solving this dilemma. The IPA gives Twitter engineers some say over the use of patents on technology they invented. Twitter can always use the patents defensively, but it cannot go on the offense without the inventors’ permission, even after they’ve left the company. The IPA is also crafted so that the inventors’ rights continue with the patent; if Twitter sells the patent, the buyer must also get inventor permission before wielding the patent offensively. Accordingly, patents under the IPA remain defensive over time, unless the actual inventors agree otherwise. This represents a significant shift in the usual relationship between inventors and employers, in which assignment agreements usually give all decision-making rights to the employer, and could, over time, decrease the “weaponizing” of patents.

Twitter’s move is also a savvy marketing move to attract engineers, who are often dubious of software patents and may resent having inventions they created used against other innovators. Former Yahoo! engineer Andy Baio, for example, took to the pages of Wired magazine to voice his frustration over Yahoo!’s suit against Facebook. Mr. Baio called the lawsuit “a deplorable move,” an “attack on invention and the hacker ethic,” and expressed his “dismay” that Yahoo! obtained four broad software patents on creations he co-invented. Mr. Baio is not alone. National Public Radio’s “This American Life” recently reported that “[i]n polls, as many as 80 percent of software engineers say the patent system actually hinders innovation."

Silicon Valley companies invest heavily in recruiting, and engineers who care about patent policy and open innovation are likely to see this as a signal that Twitter thinks differently about patents than other companies. If the IPA starts a trend, the technology labor market could become a testing ground for what policies truly “promote the progress of the useful arts” in America.

Giving control back to inventors who believe in promoting innovation rather than litigation is an important step in curbing patent abuses. There are, of course, some limitations to the IPA model. Because it is based on the wishes of individual inventors, it is necessarily piecemeal in operation. It also leaves open the possibility of side deals with inventors or pressure on them to agree to an offensive use, especially if patents are sold or a company using the IPA changes hands.

Another approach is one that we have proposed — the Defensive Patent License. The DPL similarly keeps patents defensive over time, but also promotes multilateral disarmament through network effects. In this feature, it is similar to free software and free culture licenses, such as the General Public License and some Creative Commons licenses. Companies that use the DPL make two main promises: first, that anyone can take a royalty-free license to their patents in exchange for a promise that the licensee will also offer their own patents under the DPL; and second, not to use patents against any other DPL user except in a defensive situation.

This set of promises creates a network of patent holders who are publicly and legally committed to defensive uses of their portfolios vis-a-vis each other. DPL users are free to demand licensing fees or bring infringement suits against anyone outside of the DPL network, but they must remain defensive within it. Like the IPA, the DPL’s obligations “travel with the patent”: in the event that a patent is sold, its new owner also must abide by the DPL’s terms.

The DPL also helps fix the patent system in two other ways. First, by encouraging those who have previously opted out of the patent system to participate in a manner consistent with their politics, it helps prevent overbroad and obvious patents by giving the Patent Office evidence of who is inventing what — often called “prior art” — so that the Office can avoid granting weak patents in the future.

Second, because all DPL patents are permanently defensive as against other DPL users, DPL patents provide little ammunition for trolls, diminishing the number of suits that such entities can bring in the future. The IPA and DPL each represent a private response to a broken patent system. Both create mechanisms to keep patents defensive over time. They also create incentives to both innovate, and for those who are weary of the patent system, to find a way to live more peaceably within it. And both methods, by “deweaponizing” patents, stymie patent trolls.

In many cases, innovators can no longer realistically ignore the patent system. The IPA and the DPL offer two new ways to participate in the system while creating a bulwark against some of its worst features. Over time, these methods and others may help adjust the patent system from within, leaving in place the value of strong patents in industries where they support innovation, and limiting their harm in industries where they operate to raise transaction costs and limit innovation. Unless and until Congress or the courts can improve things, such private solutions may be our best options to stem the rising tide of patent attacks.

For a further discussion of DPLs, see our Harvard Journal of Law and Technology article, “Protecting Open Innovation: A New Approach to Patent Threats, Transaction Costs, and Tactical Disarmament.”

Jennifer Urban is Director of the Samuelson Law, Technology & Public Policy Clinic and Assistant Clinical Professor of Law at UC Berkeley School of Law. This article originally appeared as “Twitter has a savvy new patent strategy” in the Daily Journal.

Last year, Congress passed patent reform legislation; it didn’t help. The courts, too, have failed to pick up the slack. The result?  A chill on innovation. American inventors—especially those who don’t often engage with the patent system until they’re facing a lawsuit—want to dedicate their resources to building the next great product or service, not fighting patent wars.

Now, here’s the less obvious: We keep learning of more and more ways innovators can navigate the system and hack it to serve its original purpose. We’re particularly excited about the newest, the Defensive Patent License. Below we explain that and some other self-help options we’ve seen lately. Of course, some are better than others, but it’s fair to say that there’s an option for everyone.

The Defensive Patent License: Defensive patenting—acquiring patents to deter future litigation—is not a new idea. In fact, companies have been doing that for some time. Unfortunately, the practice has encouraged companies to seek patents for anything and everything, which—thanks to an overburdened Patent Office—has resulted in a generation of overbroad patents that, if the company folds, often end up in the hands of a patent troll.

The idea behind not-yet-operational Defensive Patent License (“DPL”) takes the good from defensive patenting (attempts to stem litigation) and removes the bad (the risk that patents obtained defensively will be used downstream by a troll). The license would work like this:

• DPL patent holders must offer a nonexclusive, royalty-free license for any patent they own to anyone who requests one, as long as the licensee agrees not to sue the licensor or any other member of the DPL community for patent infringement.
• The licensee must offer its patents under the DPL with the same conditions to anyone who requests one.
• The licenses remain in effect throught the patent’s life, even if it is later sold.
• The licenses can only be revoked if an offensive patent suit is filed.

The DPL borrows heavily from the ethos surrounding the free and open source software community, honoring the important freedoms to operate and innovate openly. As such, it is those communities who will most likely use, and benefit from, the DPL.

The DPL represents an important answer to the fundamental problems with the patent system, but it’s not for everyone. For example, the DPL contemplates that a company will dedicate its entire patent portfolio to the license to avoid the problem of members only contributing their “junk” patents and holding on to their “crown jewels.” For various reasons, some companies may not be in a position to do that.

Luckily, the DPL is not the only self-help tool out there.

Twitter’s Innovator’s Patent Agreement: Earlier this year, Twitter announced its Innovator’s Patent Agreement (“IPA”), an important tool for companies looking to do right by their engineers. The IPA, currently up on GitHub for comments, is simple: if you assign your patent to Twitter, Twitter promises it won’t use that patent to sue anyone, except for defensive purposes.

Because the IPA doesn’t give any third party a license to the patents, it does not go quite as far as the DPL. Also, a party who adopts the IPA can chose to do so on a patent-by-patent basis. Importantly, however, the terms of the IPA will run with the patent, no matter to whom it gets sold. This means that if a patent ends up in the hands of a troll, that troll will be prohibited from using it offensively.

Open Source Licenses: The GNU General Public License (“GPL”), the most widely-used free software license, covers both copyright and patent rights. Its terms allow developers to use covered software for free, so long as those developers dedicate, free-of-charge, any changes or improvements to the public, also under GPL terms. The GPL is often cited as a crucial element in the successful rise of Linux.

Another important open source license that primarily protects Linux is the one at the heart of the Open Innovation Network (“OIN”). Founded by some of the largest Linux users, OIN allows any company to join the network, so long as it agrees to not use its patents offensively against Linux. By joining OIN, members get a license to the hundreds of patents OIN owns. As such, its mechanics are similar to the DPL, but its mission (and terms) are limited to Linux.

Other open source licenses, such as BSD licenses, the Apache License, and the Mozilla Public License, for example, cover various types of open source software. These licenses, each in its own way, ensure that important developments in open source software remain open. They do this job well, but unfortunately are limited to the software they specifically cover.

Private Companies: Private, for-profit companies also provide various ways to navigate the patent system. For example, RPX allows companies to buy into its large patent portfolio, which it promises to never use offensively against its customers. Moreover, RPX constantly grows its portfolio to cover its members’ particular needs.

Article One Partners offers a different service, providing a platform for the award of cash prizes to those who provide prior art that may be used to invalidate patents. Article One’s clients request research, which third parties provide. The third party who provides the highest quality research wins a $5,000 reward, and may form a relationship to further work with the Article One client. (Peer to Patent is Article One’s important non-profit analog.) This type of service streamlines the process of invalidating bad patents, something we’ve long supported.

This list is just the tip of the iceberg; other non-profit and for-profit organizations provide tools to help navigate a patent system gone awry, and we look forward to more joining the fray. None of these solutions is perfect, but each offers inventors of different sizes different ways to focus on innovating, and not fighting wasteful patent battles. The real solution is systemic: if software patents are here to stay, then the time to create a system that works for them is long overdue. EFF is working hard to make that happen.  In the meantime, we encourage innovators to adopt one of these solutions that works best for them.

Julie Samuels is a Staff Attorney at the Electronic Frontier Foundation. This article originally appeared on June 10, 2012 on the EFF Deeplinks blog.