May 22, 2014 | By Daniel Nazer

Hacking the Patent System: A Guide to Alternative Patent Licensing for Innovators

Update (January 2016): There’s a new, expanded edition of Hacking the Patent System for 2016.

EFF is proud to participate in the launch of a new guide to alternative patent licensing. The guide was prepared by the Juelsgaard Intellectual Property & Innovation Clinic at Stanford Law School in partnership with EFF, Engine, and the Open Invention Network (OIN). Written by Stanford students Marta Belcher and John Casey, the guide provides a high-level overview of defensive patent aggregators and defensive patent licenses. We hope it will be a useful starting place for companies trying to navigate the patent landscape.

Generally speaking, defensive aggregators use the pooled resources of member companies to purchase patents that may otherwise have been purchased by trolls. The guide discusses the business models, and suggests some pros and cons, of three defensive aggregators: Allied Security Trust, RPX, and Unified Patents.

Defensive patent licenses or pledges involve commitments to only use patents defensively. For example, the Defensive Patent License is akin to a non-aggression pact for patents: companies commit to never asserting any of their patents offensively against any other company that has also committed to the license. Twitter’s Innovator’s Patent Agreement takes a different approach. It involves a guarantee to employees that if they assign an invention to Twitter, the patent on that invention will not be used to sue anyone offensively without the inventor’s permission. The guide also discusses Google’s License on Transfer proposal and OIN.

The flood of software patents has created an environment where companies are afraid that innovation and growth leads to being hit by patent lawsuits. Every dollar spent fighting patent trolls, or waging patent wars, is a dollar not spent researching, developing, or creating jobs. And with patent reform stalling today in the Senate, companies are faced with the prospect that the current dysfunctional system may stay in place for some time. So it’s more important than ever to find ways to navigate the patent system while promoting openness and innovation.

Defensive patent licensing will not solve all problems with the patent system. But it can keep patents out of the hands of trolls and promote a culture of holding patents for defensive purposes only. We recommend that all startups and tech companies check out the new guide and consider alternative patent licensing.

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