A new way to end the patent madness

The new Defensive Patent License (DPL), launched this week by two UC Berkeley law professors, offers an improved way for businesses — especially small businesses — to protect themselves from patent attacks. Over time, it may also disarm patent trolls by reducing the supply of “weaponized” patents.

The DPL is an idea whose time has come. Patents, especially software patents, have become a running sore for the tech industry. If widely adopted — that’s a big “if” — the DPL could offer a cure that provides special benefit to the open source community.

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Patents weren’t always this messy. Mandated by the Constitution, they began as abstractions granting limited monopolies to inventors in return for adding to the public commons in “science and the useful arts.” Until this century, patent actions were rarely used as competitive weapons. Only large companies could afford to build a portfolio, and the astronomical costs associated with patent litigation meant those giants of tech preferred cross-licensing agreements as a way to keep the peace and promote good behavior.

Today, patents are treated as a form of property in their own right, valued and traded independently of any products created using the know-how they enshrine. A destructive, dog-eat-dog market in patents has resulted.

Perverting the sprit of the law How did we get here? First, the emergence of software and method patents has made it much easier to deluge the Patent Office with applications; as a consequence, the quality of inspection has gone down and the number of patents issued has gone up. Second, the rise in venture capital funding of software businesses — with the associated pressure to gain patents as assets that can be sold in the event of business failure — has encouraged many smaller businesses to follow the path into patents. Third, as the IT market has changed, patents from these VC-backed businesses have become traded goods, along with the patent portfolios of larger companies going bust.

These changes have altered the way patents are used. No longer just the domain of defensive use for cross-licensing, they have been turned into a profit center by big companies seeking to tax competitors and disruptors, as an emergency source of funds by failing corporations, and as a means of straightforward predation by companies with no products who can avoid countersuits — so-called nonpracticing entities or patent trolls. Patents have become primarily an offensive tool, “weaponized” to chill competition and tax innovation. Meanwhile, our legislators have shown a singular lack of enthusiasm for changing patent law to deal with this gaming of the system.

This is a special problem for the world of open source software. For practical and cultural reasons, open source projects rarely file for patents and are rarely beneficiaries of cross-licensing arrangements. As a result, when community members use open source software in products and commercial offerings, they inherit no protection against this offensive use of patents. Steps have been taken to create some defenses; the Open Invention Network has built an impressive patent pool to protect the Linux ecosystem, for example. But the limited scope of OIN means it isn’t a general solution for all open source projects.

Defusing patent aggression with DPL What if patents could be “de-weaponized”? Jason Schultz and Jennifer Urban have been honing an idea to deal with this problem for several years, according to a video lecture where they discuss it. Their release of the DPL this week is significant event.

Like all the best ideas, it’s simple enough. As a business, you publish a statement that you are henceforth licensing any and all patents you own under the DPL and will make such licensing a condition of sale of any of your patents. From that point, without needing to enumerate the patents you own or negotiate terms with any other business, you are entitled to use all patents ever licensed under the DPL by all other businesses. The catch? You may never again use patents offensively against other signatories of the DPL. By this simple step, all patents owned by all DPL signatories are “de-weaponized.”

Will this solve the patent wars? Definitely not immediately, and maybe not at all. First, the incentive to join the family is only as big as the family itself, so it will need to be an exponentially growing movement. Second, companies that already have vast patent portfolios used as a semi-secret profit center — like IBM — will be unlikely to join because it offers an easy way for their victims to avoid having their innovation taxed. Third, it only affects patent trolls once most patents have been de-weaponized. As long as there’s a large, healthy market in patents not subject to the DPL, patent trolls will flourish.

Even assuming huge success for the DPL, patent trolls will persist until their current patent portfolios expire. Finally, it probably has no effect on the sale of patents after the demise of the original DPL signatory, so a free market in weaponizable patents will likely continue indefinitely.

That may all sound negative, but I welcome the Defensive Patent License, both as a tool and as a contribution to the debate. I’d encourage any business working with open source to take a good, close look at it — an imperfect defense is better than no defense at all.

This article, “A new way to end the patent madness,” was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.