[cc-community] Help w/ Defensive Patents Agreement

drew Roberts zotz at 100jamz.com
Wed Feb 6 07:44:39 EST 2008


On Wednesday 06 February 2008 01:24:39 Mike Belshe wrote:
> Hi, I'm a newcomer to this group - forwarded this way via Mike Linksvayer &
> Lawrence Lessig.  Hopefully my email is not out of line :-)
>
> Here is an idea I'd like to see come to life.
>
> Like many others, I fundamentally believe software patents are broken.  Due
> to the current business climate, we can't get rid of them.  Yet, the more
> we make, the worse the problem gets.  I'd like to mitigate this.
>
> Background:
> Companies across the US are asking their employees to file patents like
> crazy.  Microsoft, Sun, and many others pay employees $1000 or more for
> every patent they file (sometimes even w/o being approved by the USPTO).
> The company always says to the employee, "Don't worry, this patent is for
> *defensive* purposes only.  It will never be used unless someone is trying
> to sue us."
>
> Of course, things don't always work out that way.  Visto is a great example
> of this.  Once the company got desperate (e.g. going out of business), they
> sold their patent rights, and viola, the patents are now being used
> aggressively rather than passively.  This is counter to what the original
> inventors were told would happen to their patents.
>
> Idea:
> What if we could draft a contract, between the inventor(s) and the
> employer.  The contract would give the company rights to the patent so long
> as the patent is used for "defensive" purposes only.  The patent would not
> be transferable to other companies except under the same defensive purposes
> agreement.  We could distribute this contract freely on the net, and
> encourage inventors to get their employers to sign them.    Over time,
> hopefully the world would have a lot of "defensive" patents, but not
> aggressive ones.  Of course, the legal definition of "defensive" is pretty
> tricky.  Perhaps a non-transferable patent is the only feasible contract.
>
> Here is where I need help.  I have lots of additional thoughts on this
> topic around goals and how it should work structurally.  But, I'm not a
> lawyer and completely incapable of actually creating it (although that
> doesn't necessarily prevent me from trying! :-)
>
> What do you all think of this idea?  Does it have merit? Is it something we
> could accomplish?  There is no doubt in my mind that if we are successful
> with this, we could change the software industry in a very positive way.
> Anyone want to help make this?  What is the fatal flaw in the idea?
>
> Thanks for your thoughts and any guidance you can give!

I like this idea a lot, or something similar. I have had a very similar idea 
in the past which I expressed online somewhere, perhaps here or perhaps 
elsewhere. I will see if I can find it and post the link.

I certainly like one part of your idea better than mine as I was going along 
the lines of patent law reform where a filer could indicate to the patent 
office that the patent filing was for defensive purposes only or for 
non-defensive purposes only.

Non-defensive purposes only patents were to be give more scrutiny and what not 
iirc.

Your idea is better in that we can begin moving on such a plan now.

[unstructure musing]

Perhaps your idea can be improved by Making a defensive patent pool where 
people who seek defensive only patents can transfer half of their interest in 
said patent to the pool. The pool will accept the transfer on the condition 
of a binding pledge that the other party will not use nay software patents in 
an offensive way (should this be extended here to any other types of patents) 
and in return, if that entity is ever attacked via this class of patents, the 
pool will use all possible patents in the pool for the defense.

[/unstructure musing]

Something along those lines.
>
> Mike
>
>
> ---
> Mike Belshe
> mike at belshe.com
> http://www.belshe.com/

all the best,

drew




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