Patentleft

Patentleft (also patent left, copyleft-style patent license or open patent) is the practice of licensing patents (especially biological patents) for royalty-free use, on the condition that adopters license related improvements they develop under the same terms. Copyleft-style licensors seek "continuous growth of a universally accessible technology commons" from which they, and others, will benefit.[1][2]

Patentleft is analogous to copyleft, a license which allows distribution of a copyrighted work and derived works, but only under the same terms.

Uses

The Biological Innovation for Open Society (BiOS) project implemented a patentleft system to encourage re-contribution and collaborative innovation of their technology. BiOS holds a patented technology for transferring genes in plants, and licenses the technology under the terms that, if a license holder improves the gene transfer tool and patents the improvement, then their improvement must be made available to all the other license holders.[3]

The open patent idea is designed to be practiced by consortia of research-oriented companies[4] and increasingly by standards bodies. These also commonly use open trademark methods to ensure some compliance with a suite of compatibility tests, e.g. Java, X/Open both of which forbid use of the mark by the non-compliant.

On October 12, 2001 the Free Software Foundation and Finite State Machine Labs Inc. (FSMLabs) announced a GPL-compliant open-patent license for FSMLabs' software patent, US 5995745. Titled the Open RTLinux patent license Version 2, it provides for usage of this patent in accordance with the GPL.[5]

Example

Person A has a patent, and licenses it under a patentleft license.

Person B has two patents in her product and wants to use Person A's patents in that product. Person B also wants to charge royalties for her two patents. She decides to use Person A's patent, but now must license her patents, royalty-free, under the same terms as Person A's patent.

Person C has three patents in his product and wants to use Person B's two patents in that product, but doesn't want to use Person A's patent. Person C also wants to charge royalties for his three patents. He decides to use Person B's patent, but now must license his patents, royalty-free, under the same terms as Person A's patent.

See also

References

  1. ^ Hope, Janet (2008). Biobazaar: The Open Source Revolution and Biotechnology. Harvard University Press. pp. 176–187. doi:10.1007/b62130. ISBN 978-0-674-02635-3.
  2. ^ Open Patent license proposal at openpatents.org
  3. ^ John T. Wilbanks and Thomas J. Wilbanks, "Science, Open Communication and Sustainable Development", 13 April 2010, "[1]"
  4. ^ Cambia Biosciences Initiative
  5. ^ FSF/FSMLabs press release for the RTLinux Open Patent License, October 12, 2001.

Further reading

External links

Biological Innovation for Open Society

BiOS (Biological Open Source/Biological Innovation for Open Society) is an international initiative to foster innovation and freedom to operate in the biological sciences. BiOS was officially launched on 10 February 2005 by Cambia, an independent, international non-profit organization dedicated to democratizing innovation. Its intention is to initiate new norms and practices for creating tools for biological innovation, using binding covenants to protect and preserve their usefulness, while allowing diverse business models for the application of these tools.As described by Richard Anthony Jefferson, CEO of Cambia, the Deputy CEO of Cambia, Dr Marie Connett worked extensively with small companies, university offices of technology transfer, attorneys, and multinational corporations to create a platform to share productive and sustainable technology. The parties developed the BiOS Material Transfer Agreement (MTA) and the BiOS license as legal instruments to facilitate these goals.

Commons

The commons is the cultural and natural resources accessible to all members of a society, including natural materials such as air, water, and a habitable earth. These resources are held in common, not owned privately. Commons can also be understood as natural resources that groups of people (communities, user groups) manage for individual and collective benefit. Characteristically, this involves a variety of informal norms and values (social practice) employed for a governance mechanism.

Commons can be also defined as a social practice of governing a resource not by state or market but by a community of users that self-governs the resource through institutions that it creates .

Compulsory license

A compulsory license provides that the owner of a patent or copyright licenses the use of their rights against payment either set by law or determined through some form of adjudication or arbitration. In essence, under a compulsory license, an individual or company seeking to use another's intellectual property can do so without seeking the rights holder's consent, and pays the rights holder a set fee for the license. This is an exception to the general rule under intellectual property laws that the intellectual property owner enjoys exclusive rights that it may license – or decline to license – to others.

Under UK patent law, a compulsory license is different from a statutory license. Under statutory license, the rate is fixed by law, whereas in case of compulsory license, the rate is left to be negotiated.

Copyleft

Copyleft, distinguished from copyright, is the practice of offering people the right to freely distribute copies and modified versions of a work with the stipulation that the same rights be preserved in derivative works created later. Copyleft software licenses are considered protective or reciprocal, as contrasted with permissive free-software licenses.Copyleft is a form of licensing, and can be used to maintain copyright conditions for works ranging from computer software, to documents, to art, to scientific discoveries and instruments in medicine. In general, copyright law is used by an author to prohibit recipients from reproducing, adapting, or distributing copies of their work. In contrast, under copyleft, an author must give every person who receives a copy of the work permission to reproduce, adapt, or distribute it, with the accompanying requirement that any resulting copies or adaptations are also bound by the same licensing agreement.

Copyleft licenses for software require that information necessary for reproducing and modifying the work must be made available to recipients of the binaries. The source code files will usually contain a copy of the license terms and acknowledge the authors.

Copyleft type licenses are a novel use of existing copyright law to ensure a work remains freely available. The GNU General Public License (GPL), originally written by Richard Stallman, was the first software copyleft license to see extensive use, and continues to dominate in that area. Creative Commons, a non-profit organization founded by Lawrence Lessig, provides a similar license-provision condition called share-alike.

Cross-licensing

A cross-licensing agreement is a contract between two or more parties where each party grants rights to their intellectual property to the other parties.

Defensive Patent License

The Defensive Patent License (DPL) is a patent license proposed by Jason Schultz and Jennifer Urban, directors of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley as a patent licensing equivalent of the GPL copyright license.It requires entities licensing their patents under the DPL to license all of their patents under the DPL, with free licenses granted to all other DPL participants. DPL participants remain free to launch patent lawsuits against non-participants.

DPL 1.0 was published on November 16, 2013, and a "birthday" celebration held at the Internet Archive. The Internet Archive was designated as the fiscal umbrella organization until it has its own non-profit entity. It was launched on February 28, 2014 at a conference in Berkeley.

Defensive patent aggregation

Defensive patent aggregation (DPA) is the practice of purchasing patents or patent rights to keep such patents out of the hands of entities that would assert them against operating companies. The opposite is offensive patent aggregation (OPA) which is the purchasing of patents in order to assert them against companies that would use the inventions protected by such patents (operating companies) and to grant licenses to these operating companies in return for licensing fees or royalties. OPA can be practiced by operating companies or Non-Practicing Entities (NPEs) Operating companies must often defend themselves against claims of patent infringement. To prevent such litigations, operating companies sometimes purchase patents in technologies which they use or develop. Another motivation for operating companies to acquire patents is the ability to counter-assert such patents in case another operating company files a patent litigation. Operating companies have also pooled their efforts and financial resources to purchase patents. An example of such defensive patent aggregation is Allied Security Trust (AST).

In 2008, a new business model emerged with third-party financing doing defensive patent aggregation whereby a third-party – the aggregator – purchases the patents or patent rights strictly to mitigate the risk and cost of litigation associated with non-practising entities (NPEs) and provides licenses to members against a fixed annual membership fee. This model was introduced by RPX Corporation, a start-up based in San Francisco. RPX received venture funding from Kleiner Perkins Caufield & Byers (KPCB) and Charles River Ventures (CRV).

Defensive termination

Defensive termination is a form of implicit cross licensing of patent or other intellectual property rights. Consider a case where company A licenses patent A to company B. One of the conditions of the license agreement is that if company B should ever sue company A for infringing one of company B’s own patents, such as patent B, then Company A can terminate the license to patent A. Thus company A would be able to counter sue company B for infringing patent A. This is a strong incentive to prevent company B from suing company A for any future patent it might receive after it has licensed patent A.The World Business Council for Sustainable Development, for example, has a defensive termination clause built into its "Eco-Patent Commons".

Essential patent

An essential patent or standard-essential patent (SEP) is a patent that claims an invention that must be used to comply with a technical standard. Standards organizations, therefore, often require members disclose and grant licenses to their patents and pending patent applications that cover a standard that the organization is developing.If a standards organization fails to get licenses to all patents that are essential to complying with a standard, owners of the unlicensed patents may demand or sue for royalties from companies that adopt the standard. This happened to the GIF and JPEG standards, for example.

Determining which patents are essential to a particular standard can be complex. Standardisation organizations require licences of essential patents to be on fair, reasonable, and non-discriminatory (FRAND) terms.

Field-of-use limitation

A field-of-use limitation is a provision in a patent license that limits the scope of what the patent owner authorizes a manufacturing licensee (that is, a licensee that manufactures a patented product or performs a patented process) to do in relation to the patent, by specifying a defined field of use—that is, a defined field of permissible operation by the licensee. In addition to affirmatively specifying the field of use, the license may negatively specify a field or fields, by specifying fields of use from which the licensee is excluded.

By way of example, such a license might authorize a licensee to manufacture patented engines only for incorporation into trucks, or to manufacture a chemical only for sale to farmers (as contrasted with home gardeners). If the licensee exceeded the scope of the licensee, it would commit patent infringement. More generally, this kind of license permits the licensee to use the patented invention in some, but not all, possible ways in which the invention could be exploited. In an exclusive field-of-use license the licensee is the only person authorized to use the invention in the field of the license.

Field-of-use limitations in patent licenses may raise antitrust issues when such arrangements are used to allocate markets or create cartels.

Free-culture movement

The free-culture movement is a social movement that promotes the freedom to distribute and modify the creative works of others in the form of free content or open content without compensation to, or the consent of, the work's original creators, by using the Internet and other forms of media.

The movement objects to what they consider over-restrictive copyright laws. Many members of the movement argue that such laws hinder creativity. They call this system "permission culture."Creative Commons is an organization started by Lawrence Lessig which provides licenses that permit sharing and remixing under various conditions, and also offers an online search of various Creative Commons-licensed works.

The free-culture movement, with its ethos of free exchange of ideas, is aligned with the free and open-source-software movement.

Today, the term stands for many other movements, including open access (OA), the remix culture, the hacker culture, the access to knowledge movement, the Open Source Learning, the copyleft movement and the public domain movement.

Outline of patents

The following outline is provided as an overview of and topical guide to patents:

Patent – set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention. An invention is a solution to a specific technological problem and is a product or a process. Patents are a form of intellectual property.

Patent infringement

Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or selling the patented invention. In many countries, a use is required to be commercial (or to have a commercial purpose) to constitute patent infringement.The scope of the patented invention or the extent of protection is defined in the claims of the granted patent. In other words, the terms of the claims inform the public of what is not allowed without the permission of the patent holder.

Patents are territorial, and infringement is only possible in a country where a patent is in force. For example, if a patent is granted in the United States, then anyone in the United States is prohibited from making, using, selling or importing the patented item, while people in other countries may be free to exploit the patented invention in their country. The scope of protection may vary from country to country, because the patent is examined -or in some countries not substantively examined- by the patent office in each country or region and may be subject to different patentability requirements.

Patent monetization

Patent monetization refers to the generation of revenue or the attempt to generate revenue by a person or company by selling or licensing the patents it owns. According to a 2006 survey of patent owners at the European Patent Office, about half of small and medium-sized enterprises (SMEs) take patents for monetary reasons.Some of these owners try to make money from patents on inventions they develop, manufacture or market. Others attempt to generate revenue by buying and enforcing patents against one or more alleged infringers in a manner considered by the target or observers as unduly aggressive or opportunistic, often with no intention to further develop, manufacture or market the patented invention. The latter group is pejoratively called patent trolls by their critics.

Patent pool

In patent law, a patent pool is a consortium of at least two companies agreeing to cross-license patents relating to a particular technology. The creation of a patent pool can save patentees and licensees time and money, and, in case of blocking patents, it may also be the only reasonable method for making the invention available to the public. Competition law issues are usually important when a large consortium is formed.

Reasonable and non-discriminatory licensing

Reasonable and non-discriminatory (RAND) terms, also known as fair, reasonable, and non-discriminatory (FRAND) terms, denote a voluntary licensing commitment that standards organizations often request from the owner of an intellectual property right (usually a patent) that is, or may become, essential to practice a technical standard. Put differently, a F/RAND commitment is a voluntary agreement between the standard-setting organization and the holder of standard-essential patents. U.S. courts, as well as courts in other jurisdictions, have found that, in appropriate circumstances, the implementer of a standard—that is, a firm or entity that uses a standard to render a service or manufacture a product—is an intended third-party beneficiary of the FRAND agreement, and, as such, is entitled to certain rights conferred by that agreement.A standard-setting organization is an industry group that sets common standards for its particular industry to ensure compatibility and interoperability of devices manufactured by different companies. A patent becomes standard-essential when a standard-setting organization sets a standard that adopts the technology that the patent covers.

Because a patent, under most countries' legal regimes, grants its inventor an exclusive right to exclude others from making, using, selling, or importing the invention, a standard-setting organization generally must obtain permission from the patent holder to include a patented technology in its standard. So, it will often request that a patent holder clarify its willingness to offer to license its standard-essential patents on FRAND terms. If the patent holder refuses upon request to license a patent that has become essential to a standard, then the standard-setting organization must exclude that technology. When viewed in this light, the FRAND commitment serves to harmonize the private interests of patent holders and the public interests of standard-setting organizations. Many scholars have written about these topics, as well as a variety of other legal and economic issues concerning licensing on F/RAND terms.

Societal views on patents

Legal scholars, economists, activists, policymakers, industries, and trade organizations have held differing views on patents and engaged in contentious debates on the subject. Critical perspectives emerged in the nineteenth century that were especially based on the principles of free trade. Contemporary criticisms have echoed those arguments, claiming that patents block innovation and waste resources that could otherwise be used productively, and also block access to an increasingly important "commons" of enabling technologies (a phenomenon called the tragedy of the anticommons), apply a "one size fits all" model to industries with differing needs, that is especially unproductive for industries other than chemicals and pharmaceuticals and especially unproductive for the software industry. Enforcement by patent trolls of poor quality patents has led to criticism of the patent office as well as the system itself. Patents on pharmaceuticals have also been a particular focus of criticism, as the high prices they enable puts life-saving drugs out of reach of many people. Alternatives to patents have been proposed, such Joseph Stiglitz's suggestion of providing "prize money" (from a "prize fund" sponsored by the government) as a substitute for the lost profits associated with abstaining from the monopoly given by a patent.These debates are part of a larger discourse on intellectual property protection which also reflects differing perspectives on copyright.

Stick licensing

Stick licensing is the practice of licensing a patent or other form of intellectual property where the patent holder threatens to sue the licensee for patent infringement if the licensee does not take a license. In contrast to the stick licensing, the "carrot licensing" is a "friendly approach in luring the target to adopting one's invention and taking a license".

Viral license

Viral license is an alternative name for copyleft licenses, especially the GPL, that allows derivative works only when permissions are preserved in modified versions of the work. Copyleft licenses include several common open-source and free content licenses, such as the GNU General Public License (GPL) and the Creative Commons Attribution-Sharealike license (E CC-BY-SA).

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