Defensive Patent Licence: Nice Idea; Not Much Use

At the end of November, I wrote about an interesting software licensing approach that seemed to allow free software to use patents in an unproblematic way - and even helped promote it above non-free code. As I wrote there, I was waiting to hear...

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At the end of November, I wrote about an interesting software licensing approach that seemed to allow free software to use patents in an unproblematic way – and even helped promote it above non-free code. As I wrote there, I was waiting to hear Richard Stallman’s considered views on this; I’ve now done so, and this is what he wrote to me a couple of weeks ago:

It looks like NTRU is truly a contribution to the free software world.

So that’s good news, although software patents remain a grave threat to free software around the world.

On the same subject, here’s a fascinating post by Mike Linksvayer about another way that software patents can be de-fanged. It concerns a new licence, called the Defensive Patent Licence (DPL), which is being formally launched at the end of next month. Here are some of its key features:

DPL users grant a royalty free license (except for the purpose of cloning products) for their entire patent portfolio, to all other DPL users. This grant is irrevocable, unless the licensee (another DPL user) withdraws from the DPL or initiates patent litigation against any DPL user — but note that the withdrawing or aggressing entity’s grant of patents to date to all other DPL users remains in force forever.

Participation is on an entity basis, i.e., a DPL user is an organization or individual. All patents held or gained while a DPL user are included. But the irrevocable license to other DPL users then travels with individual patents, even when transferred to a non-DPL user entity.

An entity doesn’t need any patents to become a DPL user.

DPL doesn’t replace or conflict with patent peace provisions in modern free/open source licenses (e.g., Apache2, GPLv3, MPL2); it’s a different, complementary approach.

It may take years for the pool of DPL users’ patents to be significant enough to gain strong network effects and become a no-brainer for businesses in some industries to join. It may never. But it seems possible, and well worth trying.

The rest of Linksvayer’s thoughtful post explores these ideas and their background, and in particular looks at how they fit with other aspects of free software. It’s well worth reading, even if the DPL itself is likely to have relatively little impact. That’s because it only applies to those who join the DPL club, which creates a typical vicious circle: few entities in the club to start with mean that few patents are made available on an royalty-free basis, and so there’s little incentive for more entities to join. Still, it’s nice to see people thinking innovatively in this space as we work towards the ultimate goal of full abolition of software patents everywhere.

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