A while back some law professors from Berkley came up with the idea of the Defensive Patent License (DPL). I won’t go into all of the details here, but the general idea is that companies pool all of their patents together and if one member of the pool is sued for patent infringement, that member can use any of the patents in the pool to file a countersuit. The main thrust of this is to allow open-source developers to acquire a patent “war-chest” to protect themselves just like the bigger companies. While this idea sounds great in theory, in reality it won’t work. Besides that fact that the only people that are going to join are going to be people that don’t have patents, or only have a few, this does nothing against patent trolls, people who don’t create a product, just hold the patent and sue companies that infringe.
So when Slashdot pointed me to this article about how to make the DPL viable, my intrest was aroused. His idea involves using the patents in the pool offensively, suing anyone who infringes and is not a part of the pool, creating what he calls a “Fair Troll”. He believes that this tactic will force companies to join the pool or risk being sued. I should have known that Mr. Mueller’s ideas wouldn’t have been well thought out or intelligent. Does he not realize the point of Mutually Assured Destruction? If the pool starts suing companies for patent violations, those companies are going to retaliate with infringement suits of their own. And to make things worse, these companies have the entire pool of DPL members to pick from (and they could pick more than one). Why would these companies, who are trying to avoid patent litigation, open themselves up to it?
I understand that software patents are not popular and that the patent system needs revamping, but the DPL and Fair Trolls are not the answer. Like it or not, software patents are probably not going to go away (though the Bilski decision should be coming soon) and developers need to learn to deal in a world with software patents.Taking a bunch of companies that have little or no patent power and joining them together will create a pool of people with little or no patent power. But at least in the defensive it’s better than going alone. Taking that same group and going on an offensive campaign is just suicide.