Open video is the movement to promote free expression and innovation in online video. OVC is a two-day summit to explore the future of video on the web. Learn more...

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New York Law School

New York Law School

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Pace University Seidenberg School

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Can a Defensive Patent License Help Protect and Promote Open Video?

Open video standards and tools are essential for participatory media. Yet, in order to keep them open, there must be strategies for managing intellectual property—both within the community and outside. Free and open source licenses have helped manage copyright issues for quite some time, but concerns over patents still abound.

In this session, Jennifer Urban and Jason Schultz, Co-Directors of the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law School, introduce a new approach to protecting open video from patent threats—the Defensive Patent License. In many patent-heavy industries, defensive patenting is a common strategy used to control patent threats and create freedom to operate and consensus around standards. The concept is simple. Rather than prosecuting and obtaining patents for the purpose of excluding competitors or seeking license fees, defensive patentees acquire patents solely as a deterrent and potential counter-weapon against any entity that threatens them legally.

Despite this tradition, the practice of defensive patenting has been very limited in the open source community, in part because of the costs of patenting, political and cultural objections to patents, and anti-innovation “bullying” tactics by both dominant industry players and “patent trolls.” There has also been important skepticism about whether or not defensive patents will actually stay defensive over their lifetime.

The DPL attempts to change this trend by providing a legal mechanism that will lower the costs of patenting, align patent with the cultural and political objectives of open technology communities, and make patents permanently defensive as to those who agree to the terms of the license. It publicly commits organizations, companies, and individuals to using their patents for defensive purposes only and creates a broad open patent cross-licensing program available to anyone on a royalty-free basis as long as they agree to do the same. We believe this license would help promote the goals of the open video community, especially in regard to ensuring that open video technologies are available and affordable across the web.

Jason Schultz and Jennifer Urban, Co-Directors of the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law School

Jason Schultz and Jennifer Urban, Co-Directors of the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law School


This session will introduce the DPL and the rationale behind it. Session participants will offer their ideas as to the types of patent issues confronting open video projects and which technologies or standards they target, as well as explore whether or not using the DPL could help address patent problems in the open video landscape. Participants will also help to detail the specific needs the open video community would have in order to implement the DPL and will ultimately produce a set of recommendations for defensive patent licensing in open video.

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