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Berkeley Law professors propose 'tactical disarmament' agreement for patent suits

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Two professors from Berkeley Law have launched the Defensive Patent License, which gives signatories access to each others' patents for free as long as they agree not to sue each other.

Video Game Patent Art
Video Game Patent Art

A pair of Berkeley law professors are trying to stem the flood of patent lawsuits that have affected everyone from tech giants like Google to startups like Nest. Jason Schultz and Jennifer Urban have just launched the Defensive Patent License, an agreement meant to let companies use each other's patents without fear of lawsuits. Any group that used the license would agree to make all its patents available, royalty-free, to any other signatory. They'd also agree not to launch a patent suit against anyone else who had signed: a kind of mutual non-aggression pact. At the Usenix conference on cyberlaw, Schultz said that while patents are useful for encouraging innovation, the litigation around them has gone too far. "The idea is if you want to be part of this network of defensive patent people, you are committing that all of your patents, every single thing you’ve done, will be available royalty-free to anyone who wants to take a license, if they commit to only practice defensive patent licensing."

Whether this will work, of course, is another question. While small companies have an incentive to join, there's not much reason for giants like Microsoft to let their (often very lucrative) patents into the wild in exchange for freedom from lawsuits, even if they can still sue anyone outside the agreement. Schultz said "this is one of the reasons we’re still tweaking the license a bit," but he apparently didn't elaborate on how he might entice larger parties. There are already patent-sharing agreements elsewhere, but because they don't require members to share their entire portfolios, it's possible for a business to join and then offer only its worst patents. On the other hand, Schultz says it could "decrease the weapon supply of [patent] trolls" since companies will have to make sure they only sell patents to groups that agree to follow DPL principles. Twitter has proposed a similar system, so we'll see if other companies follow suit.