Berkeley Law professors outline non-aggression pacts for tech patents

Patent Troll Solution Proposed

Like a lot of folks, Berkeley Law professors Jason Schultz and Jennifer Urban are tired of seeing excessive patent litigation in the tech industry, especially when it’s initiated by patent holding firms that produce no actual technology of their own. To remedy this, they’ve created the Defensive Patent License project in which companies would allow one another to use their patents freely under the condition that they don’t sue one another.

Essentially it works like this: if two companies are tired of spending ungodly sums of money suing one another they can agree to put their patents into the general Defensive Patent License. Doing this will not only give them access to each other’s patents for free but will also give them free access to the patents held by all DPL members. Here are some details on DPL membership, as currently outlined in Schulz and Urban’s latest paper:

  • DPL members are barred from suing one another over IP disputes, although they can still sue non-members for alleged patent infringement
  • For as long as they’re members, DPL members must offer their whole current and future patent portfolios to the group
  • If a DPL member wants to sell their patents while they’re still in the group, they must make sure that the buyer agrees to DPL obligations
  • Members can choose to exit DPL but must give six months’ notice to all members before leaving

Although this concept of mutual non-aggression for patent licenses sounds promising, it does have some pretty big flaws that are hard to overlook. As Jon Brodkin of Ars Technica writes, the DPL as it’s currently conceived doesn’t offer much incentive to large companies with enormous patent portfolios such as Microsoft, Apple and IBM. And if the DPL is mostly made of small companies with weak IP portfolios then it’s unlikely to provide much of a defense if each of its members can simply be crushed by the tech industry’s behemoths.

At the same time, however, Brodkin notes that having several small players taking their patents out of play for offensive legal use could drain the swamp of patent trolls since it would shrink the pool of patents from which trolls could purchase. Either way, it’s an intriguing concept that should hopefully spark some creative thinking at companies that are sick and tired of wasting money on IP litigation.

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