Re: pooling patents for progress and protection

Pooling patents for progress and protection

Rik van Riel <riel(at)surriel(dot)com>
december 26-30, 2002

The goal of patents is to promote technical progress and inventions;
however the patent system is often abused by big patent holders to block
entry to the marketplace by new and small companies, thus hampering
technical progress instead of promoting it.

My goals are to give small innovative companies a fair chance again and
promoting technical progress and innovation once more, all while following
the rules of the patent game to the letter.

The basic ideas behind the patent pool idea are:

1) Any person or organisation can participate by contributing all of
his/her/its patents to the pool.

2) Contributing a patent to the pool means giving every participant
the right to use the technology described in the patent, while
gaining the right to use the technology described in all the other
patents in the pool.

3) Each participant can use all of the patents in the pool for
defensive purposes, when faced with a patent infringement lawsuit.
I'm not yet sure what legal construction can be used to achieve this
effect, but it is important that all the participants can rely on
the whole patent pool to defend themselves against patent infringement,
using the standard "but you're infringing on my patents, too" counter
suit trick that almost always leads to a cross-licensing agreement.

4) A participant can withdraw from the patent pool, losing the rights to
use the patent pool for protection in the future. However, once a
patent has been contributed to the pool, that patent cannot be
withdrawn from the pool and will stay in the pool until the patent
expires; this to protect the other participants in the pool.

5) If a participant's last patent in the pool expires, the participant
needs to do an invention and contribute a new patent to the pool.
This clause is present because the patent pool should promote
technical progress and inventions, like patents are supposed to.

6) Participants retain the right to grant usage rights on their
technology to anybody else for any reason, outside of this agreement.
This includes cross-licensing agreements with third parties, granting
the right to the use of the technology in non-profit or free software
situations, etc...

This patent pool is primarily meant for small inventors and companies,
who have few patents each and are a frequent target for bullying and
predatory practices by large patent holders, who use patents as a way
to prevent small companies from entering the market, thereby stifling
technical progress itself.

This patent pool should:
1) protect inventors and companies making products
2) promote technical progress
3) be a win-win play for all participants

If you have an idea on how to improve this patent pool idea to better
suit these goals, or if you have an additional goal you think should be
included, please let me know.

Feel free to share this document with other people.

Rik van Riel <riel(at)surriel(dot)com>

On Sun, 29 Dec 2002, Rik van Riel wrote:

> 3) Each participant can use all of the patents in the pool for
> defensive purposes, when faced with a patent infringement lawsuit.
> I'm not yet sure what legal construction can be used to achieve this
> effect, but it is important that all the participants can rely on
> the whole patent pool to defend themselves against patent infringement,
> using the standard "but you're infringing on my patents, too" counter
> suit trick that almost always leads to a cross-licensing agreement.

This would mean that every member would need the right to sublicense
every patent from the pool. As this can easily be abused I'm not sure
his point is a good idea.

(are there other defensive purposes besides cross licensing?)

yours,
peter
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On Mon, 30 Dec 2002, Peter Palfrader wrote:
> On Sun, 29 Dec 2002, Rik van Riel wrote:
>
> > 3) Each participant can use all of the patents in the pool for
> > defensive purposes, when faced with a patent infringement lawsuit.
> > I'm not yet sure what legal construction can be used to achieve this
> > effect, but it is important that all the participants can rely on
> > the whole patent pool to defend themselves against patent infringement,
> > using the standard "but you're infringing on my patents, too" counter
> > suit trick that almost always leads to a cross-licensing agreement.
>
> This would mean that every member would need the right to sublicense
> every patent from the pool. As this can easily be abused I'm not sure
> his point is a good idea.
>
> (are there other defensive purposes besides cross licensing?)

The other purpose is an injunction, forbidding the other party from
shipping a product using the technology in question.

This means that the patent pool agreement only needs to give every
participant the ability to get an injunction on the use of technology
from the pool's patents by any third party that doesn't have the
rights to use the technology because of other agreements.

These injunctions function as a "mutually insured destruction"
sword of damocles, meaning that the patent pool participant doesn't
need to cross-license any patents, except maybe its own patents.

regards,

Rik
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On Sun, Dec 29, 2002 at 11:17:23PM -0200, Rik van Riel wrote:

> This means that the patent pool agreement only needs to give every
> participant the ability to get an injunction on the use of technology
> from the pool's patents by any third party that doesn't have the
> rights to use the technology because of other agreements.

I guess another potential benefit would be that in all likelihood any
lobbying from the organisation as a whole for, say, shorter patents on
certain classes of invention (like software methods etc.) would likely
have more chance, as the "you're just bitter 'cos you don't have any"
argument wouldn't fly.

Cheers,

Nick

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