[cc-community] Help w/ Defensive Patents Agreement
giorgos at smu.edu.sg
Wed Feb 6 08:24:41 EST 2008
Just my 2 cents, as someone who has worked for a large IT company that is known for its patent hunger and someone that has 3 patents with that company: you can't negotiate the terms of your patents with the employer, at least not with employers I can think of. What one could do, is NOT patent inventions which they want to keep free, though this is potentially a treacherous path which one must tread carefully. I have a hard time imagining a corporate employer who would allow their engineers to impose constraints on the use of the patents.
If you could convince some companies to adopt "defensive" contracts as the de facto standard and develop official policies restricting the possible uses of their patents, this might be attractive to some companies, as exhibiting a form of socially responsible IP policy (along the lines of "we are not evil"). But it would probably require pressure at the institutional level for this to happen. I'm afraid that individual inventors would be helpless when confronting their employer with such terms.
Though perhaps I am missing something and there are contexts in which this would work... I just don't know them.
From: cc-community-bounces at lists.ibiblio.org on behalf of drew Roberts
Sent: Wed 2/6/2008 8:44 PM
To: cc-community at lists.ibiblio.org
Subject: Re: [cc-community] Help w/ Defensive Patents Agreement
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.
> 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.
> 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
Your idea is better in that we can begin moving on such a plan now.
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.
Something along those lines.
> Mike Belshe
> mike at belshe.com
all the best,
cc-community mailing list
cc-community at lists.ibiblio.org
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Size: 7815 bytes
Desc: not available
Url : http://lists.ibiblio.org/pipermail/cc-community/attachments/20080206/55254b2f/attachment.bin
More information about the cc-community