Schultz and Urban - A Defensive Patent License Proposal - Stanford Center for Internet and Society

Stanford Center for Internet and Society
May 2, 2011
Defensive patenting---i.e., filing a patent specifically to avoid the threat of litigation---is a common strategy in the world of intellectual property for private companies focused on information technology. Free software and open source ("FOSS") projects, however, are historically wary of defensive patenting. Why is this? And what strategies might make defensive patenting more appealing to the FOSS community? In this talk, UC Berkley's Jason Schultz and Jennifer Urban proposed a possible defensive patent strategy (including a proposed license) for FOSS and discussed the advantages and challenges (legal, economic, and cultural challenges) of their approach.

Jason M. Schultz is an Assistant Clinical Professor of Law and Director of the Samuelson Law, Technology & Public Policy Clinic at the UC Berkeley School of Law (Boalt Hall).Before joining Boalt Hall as a faculty member in the Samuelson Clinic, he was a Senior Staff Attorney at the Electronic Frontier Foundation (EFF).Prior to EFF, he practiced intellectual property law at the firm of Fish & Richardson, P.C. and served as a clerk to the Honorable D. Lowell Jensen of the Northern District of California.

At EFF, Schultz handled numerous high-profile intellectual property and technology matters affecting the public's interests in free expression, fair use, and innovation with an emphasis on issues of copyright law, reverse engineering, digital rights management, and patent law reform. He also founded EFF's Patent Busting Project.

Jennifer M. Urban joined Berkeley Law in 2009 as an Assistant Clinical Professor of Law and Director of the Samuelson Law, Technology & Public Policy Clinic at the UC Berkeley School of Law. Prior to Berkeley Law Jennifer was at the University of Southern California's Gould School of Law, where she founded and directed the USC Intellectual Property & Technology Law Clinic and taught classes on issues related to intellectual property, privacy and individual rights in a world of rapid technological and societal change.
At USC, Urban's clinic students represented public interest clients in numerous cases and projects related to IP and technology law, including, for example: copyright legislative work on "orphan works;" consumer counseling work around web reputation and privacy; defensive patent licensing; and work with small filmmakers and other artists on fair use, licensing and free expression.

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[Eric P. Mirabel]

if everyone has lots of patents, why make committments to not sue, in an expensive (to prepare) license? Just wait until litigation -- which won't happen if everyone has patents.

[David Kinghorn]

One thought on getting larger companies to adopt this would be to allow companies to pay a significant fee (perhaps $1m per year) in order to exempt their key patents from this while still sharing the rest. For example, google could keep the page rank patent for a fee but put everything else in the pool. This would greatly diminish the number of patents companies would need to worry about when developing a new product and the fees could be used for legal aid in defending against patent trolls.

[Richard Brady]

Absolutely amazing. The more I sit and think this through, the more I realise how brilliant it is. I have no doubt that the acronym DPL will one day be as common as GPL.