Protecting Open Innovation : The Defensive Patent License as a New Approach to Patent Threats, Transaction Costs, and Tactical Disarmament

Historically, Open Innovation Communities (OICs), such as those who make free and open source software (FOSS), have opted out of the patent system for three main reasons: Patents are expensive to acquire and enforce; they are philosophically, culturally, and politically anathema to many OIC members; and even when they appear to be acquired for “defensive” or other altruistic purposes, there has been no guarantee against someone later “weaponizing” them for use in an offensive attack. In this article, we first analyze how and why various OICs have approached strategic concerns about intellectual property and then make a case for why OICs should – and indeed must – opt back into the patent system if they wish to protect themselves from the growing threats that patents pose, including threats from the increasingly complex “thicket” of patents on software, standards, and ecosystems that have become the battlegrounds over technologies such as smartphones, online video, and social media. We support our argument with a proposal for a new OIC patent license – the Defensive Patent License. Built on legal and normative approaches similar to the GNU General Public License and Creative Commons licensing, the DPL directly addresses the three reasons for OIC opt-out and provides several positive reasons for opting in, including increasing access and interoperability between OIC technologies, improving the prior art, imposing legally-binding restrictions that require DPL patents to remain “defensive,” and preventing patent trolls, “bullies,” or others from ever asserting DPL patents against those who use the license. We end with a comparison of the DPL to other OIC patent strategies to situate it within the current set of options OICs face in dealing with patent threats