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.
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.