Nuclear deterrence for patents: let's create a network of defensive patents

By Jennifer Urban, Wired.com


Yet another patent lawsuit. This time, it’s Google (with its Motorola Mobility unit) striking back at BT after being sued before. Just a few days earlier, Facebook was sued over its now ubiquitous “Like” button. Then there was Microsoft and Motorola (again). The list goes on.

And yet, I propose (with Jason Schultz) that innovators should — even must – opt back in to the patent system if they wish to protect themselves from the growing threats patents pose. This is true even for those who practice open innovation, such as free and open source software developers.

Why? Because if all innovators obtain patents that they commit to keeping for defensive purposes only — linking them together into a defensive network — we can take the patent system as it exists today and use it to create a bulwark against its own worst features.

Software and other abstract patents have a deservedly bad reputation for overbreadth, overclaiming, excessive restrictions on follow-on innovators, and other abuse. But more specifically, the large number of software patents in the system creates “weaponized” patents: weak in claims, yet able to take down a legitimate competitor or new entrant to the marketplace.

This isn’t just a hypothetical fear. The increasingly complex “thickets” of software patents (coupled with standards and other ecosystems) have created battlegrounds over APIs, online advertising, and smartphones to name just a few. The players in these cases are large companies with deep pockets — Oracle suing Google, Yahoo suing Facebook, Apple suing Samsung — but the threat is arguably even greater for startups and others with fewer resources for defense.

This situation leaves innovators — especially those who are committed to openness or to reducing rights thickets — in a bind.

Because companies may need to defend against patents wielded by others, the decision about whether or not to patent is often a response to the potential danger of lawsuits rather than a strategy for fueling innovation. That’s not the purpose of the patent system at all. And that’s why we propose a Defensive Patent License (DPL) to create a network of permanently defensive patents. This approach is premised on two main promises:

Anyone can take a royalty-free license to the innovator’s patents in exchange for a promise that the licensee will also offer their own patents under the DPL. Importantly, the DPL’s obligations “travel with the patent”: In the event that a patent is sold, its new owner must also abide by the DPL’s terms. By de-weaponizing patents this way, the DPL could help limit lawsuit risk. This is especially true for the risks posed by patent trolls, because a patent that can only be used defensively against a large network of innovators is likely to have little value for a troll.

Innovators can’t use patents against any other DPL user, except defensively. 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. The DPL thus builds on the ideas and culture behind free software licenses — such as the General Public License (GPL) and some Creative Commons licenses — to use intellectual property rights as a tool for creating openness through network effects.

As innovators opt into the DPL network, the DPL keeps their patents defensive over time and promotes multilateral disarmament by creating a network of patent holders publicly and legally committed to defense. Over time, it would also create a network of patents that innovators could license — royalty-free — for use in their own innovations.

There are other benefits to this approach, as well. By encouraging stronger prior art, the DPL can help fix the patent system over the medium- to long-term — the patents themselves would provide the USPTO with the best evidence of prior art. The DPL thus adjusts the patent system from within: leaving in place the value of strong patents in industries where they support innovation, while limiting harm in industries where they raise transaction costs and block innovation.

Let me be clear. This is a second-best solution, tailored for the world we live in rather than a world where full system reform is on the horizon. Congress is unlikely to fundamentally reform patentable subject matter or patent scope anytime soon, and technology innovators can’t realistically ignore the patent system. It may seem counterintuitive, but opting in to the system — yet taking control over how patents are used — may be the best solution for now.