New Patent License for Free Software, Open Source

Slashdot links to a good explanation of how the Defensive Patent License will work. It is not the same as the GPL’s traditional patent clauses which have much in common with defensive patent pools. Both are used more to execute a sort of mutual patent litigation approach, rather than conditioning use or access.

It does have some aspects in common with a patent pool, ones distinct from the approach in the GPL or the W3C rules around royalty free grants for any patents involved with a recommendation. It sets up sharing rules, though, more similar in spirit to the GPL’s and other licenses’ conditions on copyright that create a shared commons in their execution.

The DPL is still a work in progress. But so far, Schultz and Urban have worked out the following rules for the DPL:

  • Members of the DPL would make a business decision that they are obtaining patents strictly for defensive purposes and not because they want to sell licenses or go on the offensive with lawsuits.
  • Members of the DPL contribute all of their patents in their patent portfolio – they don’t pick and choose (and this is what differentiates it from other defensive patent pools).
  • Members of the DPL allow all other members to use its patents without royalty and without fear of patent infringement lawsuits from other members as long as a member does not file offensive lawsuits or remove their patents from the DPL.
  • Members may choose to leave the DPL but cannot revoke the royalty-free license from members who used it during the time the company was a member.
  • Members that join after a company leaves would not have royalty-free access to a former member’s patent portfolio.
  • The royalty-free cross licensing applies only to members of the DPL. Members are free to pursue royalties or lawsuits with companies outside the DPL.

This is clearly aimed at FLOSS projects where it would be practical for them to go all in with their patents. As the article notes, many projects hold back from patent applications for a variety of reasons. The primary effect of this project may be to change that, to give projects an ethical framework in which to acquire patents and make them available widely.

Adoption is going to be key, something the article doesn’t touch on. I think a single high profile project committing to this, perhaps even the Linux kernel itself, could do a world of good for jump starting this commons which really is long overdue.

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