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Share-Alike Patents

9

8 August 2011 by Ian Davis

As I mentioned in my last post on disrupting the patent system, I did have one new idea: a share-alike patent. This is a pretty simple idea for anyone familiar with the GPL or Creative Commons Share-Alike licenses.

A share-alike  patent is a standard patent but it embeds a default licensing agreement. Anyone may freely use the invention described in the patent but any subsequent refinement or innovation based on that patent must also be licensed using the share-alike license. Alternatively, if the licensee doesn’t want to put their invention under the share-alike terms then they can license the invention under a standard commercial license agreement as they do today.

This is the mild form of share-alike patent license. A stronger form would assert that any invention that is combined with the share-alike invention must also be licensed in the same way. This is analog of the viral combination terms in the GPL.

The net effect of this kind of patent would be to create an ever-growing a pool of inventions that are free to use for any purpose at no cost. Any inventor filing a patent in this way has the potential to earn royalties from their inventions as they do today. However they get the additional benefit of being able to quickly and freely combine their invention with any other share-alike patent removing a huge amount of go-to-market friction. Additionally the patent itself retains value so can still be classed as an IP asset when valuing a business. That should be pretty attractive to any entrepreneurial inventor.

At the same time it opens up the knowledge of the inventor as a public good just like the original patent system was intended to. Anyone can freely reuse the knowledge of the inventor. Licensees only pay if they want to close off knowledge, not if they want to open it.

Has anyone seen anything like this in use or being proposed before?

9 thoughts on “Share-Alike Patents

  1. Do you think it’s possible to make a useful default licence in this way, that will support royalties to inventor? I guess one advantage over CC is that the patent is bound to a jurisdiction, so the licence is necessarily for that jurisdiction. But you’d still want common langauage.

    • iand says:

      I think it should be possible. It’s a task comparable to the CC effort, maybe even something that they are best placed to lead.

  2. I’m still struggling to get my head round this idea, probably because I’ve not seen many patents (and have read none of them in detail). But I thought the patent describes an invention, for which it gives the inventor some exclusive rights, for a limited time in a limited territory. I didn’t think it had anything to do with the licence; having got the patent, the inventor is then free to write whatever licence they like (the general idea being if they are too greedy there is a stimulus to find an alternative invention). So my first question is: can a licence be embedded in a patent?

    On to the second part of the argument, and here my lack of knowledge is really a problem. It’s this bit: “any subsequent refinement or innovation based on that patent must also be licensed using the share-alike license”. I guess I read this as saying that any subsequent patents from refinements etc must be licensed with the share-alike licence. If patents are essentially independent, I don’t see that this would work. But on the umpteenth re-reading, I noticed that you didn’t mention subsequent patents.

    Is this really less about the patent and more about a share-alike technology licence?

    • I think with the “any subsequent refinement” section might be talking about future patents, and the way this would probably work is that if you have a patent for something, and an improvement is made, whoever makes the improvement must still rely on the original patent in order to bring a product to market, and the way to avoid an infringement suit is to make the improvement share alike as well.

  3. I think this is an interesting idea, but it needs to be refined a bit to work with patents. Essentially, what would be needed would be for the patent-holder to be able to say “if you use/acknowledge this invention in a certain way, I will not sue you for violating it” — basically, patents don’t actually work just through licensing, but much more through the threat of suit – in fact, if you think a patent is incorrectly issued (earlier prior art, etc.) you cannot challenge it – you are supposed to (by patent law in the US as best it was explained to me) go ahead with your product, and wait to be sued. If you are not sued, you cannot invalidate the patent – you can just make your widget or app or whatever. It is a bizarre set of laws, but that is how it functions. Also, the share-alike would need to be made binding on subsequent owners of the same patent — patents are bought and sold, and many of the real problems come from the annoyance litigation created by patent trolls, as they’ve come to be known.

    So I think it is the start of an interesting idea – hope someone takes it seriously

    • You can also file for a declaratory judgment that your patent does not infringe. This is generally not the preferred method of making sure your product is allowed because if you just make your product and don’t get sued then you’re incurring no costs at all associated with litigation. However, if you think a suit is highly likely, I think there is some gain in terms of legal footing that you receive if you proactively file for declaratory judgment (but I’m not sure on that last part).

  4. Sitting in my Patent law class tonight I had this exact idea, and googled “share alike patent” to see if I was the only one to think about this. You have me beaten by less than a month, and based on the analogous idea that around the time of a patent filing, a lot of people sometimes are working on very similar research, this makes me think the actual creation of something like this may not be far off.

  5. Jak says:

    I find your idea interesting, but am not in favor of it. If I improve on an invention and make it unique, I would not want to give credit to anyone. As an example let’s say a bicycle just got a patent. If I came up with an idea that made it better, why should I give credit to the original inventor? Many products are improvements on old inventions.

  6. Liat Ophir Vatelmacher says:

    Amazingly I had the same idea a free search website where anyone can upload any idea and the fact it is written and storage under a certain date on the server it is a proof.
    who needs more? (except the governments and attorneys who charge us and can not really protect our ideas).

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