Could a 'Defensive Patent License' Fix the U.S. Patent System?

By Meghin Delaney, Corporate Counsel


It might be a heretical idea for readers of this magazine, but law professor Jason Schultz says that many innovators don't want to patent their creations. He says that they tell him, " 'I get threatened by patents, why would I want to participate in this system?' " But Schultz and Jennifer Urban, both professors at the University of California at Berkeley School of Law, have come up with what they think is a solution.

The two have developed what they call the Defensive Patent License (DPL), a standardized license that innovators could obtain online. The key feature: Anyone who takes out a DPL for their invention agrees not to sue anyone else who does the same. The aim is to create a network of inventors who've all pledged not to sue each other. The DPL is more likely to attract newcomers and start-ups, Schultz says, because established companies are less likely to promote the sharing of IP.

Schultz spent three years as an associate at Fish & Richardson, and prior to that, as a senior staff attorney at the nonprofit Electronic Frontier Foundation. He recently talked with us about how he and Urban came up with DPL, and what they hope to accomplish with it. An edited version of our conversation follows...