A Defensive Patent License

Session Type:
Working group
Session Category:
Session Leader:
Jason Schultz and Jennifer Urban
Samuelson Law, Technology & Public Policy Clinic at Berkeley Law School

Matt Frost, Google WebM

Lea Shaver, Hofstra Law School

Day: Saturday
Room: W220
Time: 2:30pm – 4:00pm

Session Notes


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.


Jennifer Urban and Jason Schultz will start off this session with a 15-minute presentation about defensive patenting, the reasons Open Innovation Communities currently do not use this practice, and how a new Defensive Patent License (DPL) could help Open Innovation Communities gain some of the benefits of defensive patenting. They will then open the floor up to talk about the specific patent issues that face Open Video Communities and assess whether and to what extent the DPL can help. The session will conclude with specific action items for those who want to implement the DPL with their current projects.

This session’s goals include developing an assessment of the current patent threat level in open video communities and a detailed understanding of defensive patenting as a practice and the DPL as an open license that would facilitate its use.  The group will also work to identify open video projects that are interested in the DPL and plan to move forward on adapting it as part of an effort to defend open video against current and future patent threats.