We're pleased to announce the 2016 edition of Hacking the Patent System, a guide to alternative patent licensing produced by the Juelsgaard Intellectual Property & Innovation Clinic at Stanford Law School in partnership with EFF and Engine. First published in 2014, the guide provides a high-level overview of several tools that inventors and innovators could use to avert unnecessary and costly patent litigation (or at least to avoid trollish behavior themselves).
The tools we cover fall roughly into three categories: defensive patent aggregators, defensive patent pledges, and insurance. Generally speaking, defensive aggregators use the pooled resources of member companies to purchase patents that may otherwise have been purchased by trolls. These include organizations such as Allied Security Trust, RPX, and Unified Patents.
Defensive patent pledges involve commitments to only use patents defensively or to assert one’s patents only under certain circumstances. Some pledges create a sort of demilitarized zone for patents: for example, when a company signs onto the Defensive Patent License (DPL), it promises not to offensively assert its patents against other company that has also agreed to the DPL. Other pledges place limits on the patent owner’s ability to sue anyone for infringement. For example, Twitter’s Innovator’s Patent Agreement 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.
For this edition, we’ve added a new section on patent litigation insurance. This insurance is exactly what the name implies: customers pay a fee in order to receive legal assistance if and when they are threatened or sued by a patent owner. Although patent litigation insurance has existed in some form for several years, it has become increasingly popular as of late. In October, defensive patent aggregator Unified Patents launched an optional insurance plan for its members at a much lower premium than other insurance offerings, making it a viable option for startups.
Another big change since 2014 is the rise in companies making public commitments to open their patent portfolios to the public. Shortly after the first edition of Hacking the Patent System, Tesla made waves with its commitment to use its patents only defensively; since then, several other companies have followed suit (with various strings attached). We’ve added a new section on these individual pledges.
Patent hacking isn’t a substitute for patent reform. These hacks help keep some patents out of the hands of trolls but they don’t come close to preventing all the harms caused by software patents. As long as the flood of software patents continues, some will end up in the hands of trolls and other bad actors. While we applaud the rise in open patent licensing, we will continue to push for reforms to make the patent system into the engine of innovation that it should be.