Brad Feld

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The Emergence of Defensive Patent Commons

Jun 30, 2008
Category Technology

Today’s Wall Street Journal has an article titled Tech Giants Join Together To Head Off Patent Suits.  It describes the efforts of a new organization named Allied Security Trust who’s goal is to "buy up key intellectual property before it falls into the hands of parties that could use it against them."  The named companies that have joined Allied Security Trust are Verizon, Google, Cisco, Telefon, Ericsson, and HP.

Allied Security Trust appears to be an example of the emerging construct of a "patent commons".  There are already a number of existing patent commons such as the Patent Commons Project aimed at protecting open source software.

There are two types of patent commons – offensive and defensive.  So far the folks that have been putting together patent commons for potentially offensive purposes have kept a very low profile and often have denied publicly that they will use their patent portfolio’s offensively.  However, I’ve heard directly from a number of people involved in some of these organizations that the long term goal is to aggressively license the patent commons once it is large enough.

I’m not a fan of the offensive patent commons.  However, I am a huge fan of the defensive patent commons. As I’ve written in the past, I strongly believe that the entire ecosystem around software patents is completely fubared.  The courts – especially in the US – are poorly equipped to deal with the software patent issues and the USPTO has demonstrated that it’s either not up to the task or unable structurally to change the way things work.  Our government – especially Congress – has demonstrated that it lacks the political will to address the situation.  And, while the Supreme Court has finally waded in with a few key decisions, it still has an extremely long way to go if it really wants to address the underlying issues.

Having studied this for the last few years, it’s my strong belief that the software / computer industry has to solve the problem.  Recently, I’ve been advocating the idea of defensive patent commons – ones that are organized by clusters of large companies – but open to all that are interested.  There are lots of challenges in organizing this, including determining who can join, what the price of admission is, and what the ongoing costs of supporting the organization are, but these are solvable issues if the broad construct is adopted.

I’ll reserve judgement on the Allied Security Trust until I learn more about it, but it seems like it’s a step in the right direction if the brief description in the WSJ is accurate.  A key indicator to me will be whether organizations like Allied Security Trust vow to only use their patents defensively.  The absence of this will always raise suspicion that it’s a veiled effort to create a mega-patent-troll or that unintended consequences might result from future activity. 

Ultimately, a defensive patent commons is analogous to the idea of patent insurance, which is also starting to emerge.  I think a defensive patent commons is ultimately going to be a more powerful mechanism if organized correctly, but the analogy is a useful one to understand better how a defensive patent commons might operate.