Author(s): Jason Schultz and Jennifer Urban
Year: 2012
Abstract:
Historically,
Open Innovation Communities (OICs), such as those who make free and
open source software (FOSS), have opted out of the patent system for
three main reasons: Patents are expensive to acquire and enforce; they
are philosophically, culturally, and politically anathema to many OIC
members; and even when they appear to be acquired for “defensive” or
other altruistic purposes, there has been no guarantee against someone
later “weaponizing” them for use in an offensive attack.
In
this article, we first analyze how and why various OICs have approached
strategic concerns about intellectual property and then make a case for
why OICs should – and indeed must – opt back into the patent system if
they wish to protect themselves from the growing threats that patents
pose, including threats from the increasingly complex “thicket” of
patents on software, standards, and ecosystems that have become the
battlegrounds over technologies such as smartphones, online video, and
social media. We support our argument with a proposal for a new OIC
patent license – the Defensive Patent License. Built on legal and
normative approaches similar to the GNU General Public License and
Creative Commons licensing, the DPL directly addresses the three reasons
for OIC opt-out and provides several positive reasons for opting in,
including increasing access and interoperability between OIC
technologies, improving the prior art, imposing legally-binding
restrictions that require DPL patents to remain “defensive,” and
preventing patent trolls, “bullies,” or others from ever asserting DPL
patents against those who use the license. We end with a comparison of
the DPL to other OIC patent strategies to situate it within the current
set of options OICs face in dealing with patent threats.
Keywords: patent, open, innovation, license
Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2040945