Software Patent NATO, 1993

In my thoughts on the Defensive Patent License, I neglected to note in the history section a similar proposal made in 1993 by John Walker, founder of Autodesk, PATO: Collective Security In the Age of Software Patents:

[T]he trend toward increased litigation, constraining innovation in the software industry, is accelerating. The U.S. government is using trade negotiations to force other countries to institute software patents in their own markets.

While eliminating software patents would be the best solution, changing the law takes a long time and is uncertain to succeed. I’ve been trying to puzzle out how the software industry might rescue itself from immolation through litigation and came up with the following proposal.

Could have been written in 2013.

I’ve been thinking about using NATO as a model of a patent defence consortium. Suppose a bunch of big software companies (perhaps led by Oracle, who’s already taken the point on this) were to form PATO–Patent And Technology Organisation–and contribute all their current software patents, and all new software patents they were granted as long as they remained a member of PATO, to its “cross-licensing pool”. To keep the lawyers and shareholders from going nuts, the patents would be licensed through PATO but would remain the property of the member–a member could withdraw with appropriate notice and take the patents back from the pool.

Any member of PATO would be granted an automatic, royalty-free license to use any patent in the cross-licensing pool. Thus, by putting your patents in the pool, you obtain access to all the others automatically (but if you withdraw and pull your patents, of course you then become vulnerable for those you’ve used, which creates a powerful disincentive to quit).

The basic principle of NATO is that an attack on any member is considered an attack on all members. In PATO it works like this–if any member of PATO is alleged with infringement of a software patent by a non-member, then that member may counter-sue the attacker based on infringement of any patent in the PATO cross-licensing pool, regardless of what member contributed it. Once a load of companies and patents are in the pool, this will be a deterrent equivalent to a couple thousand MIRVs in silos–odds are that any potential plaintiff will be more vulnerable to 10 or 20 PATO patents than the PATO member is to one patent from the aggressor. Perhaps the suit will just be dropped and the bad guy will decide to join PATO….

Differences with the DPL, two decades hence:

  • PATO was to cover software patents only; a challenge to define.
  • PATO members could counter-sue attackers with patents from any other member; I have no idea whether this is legally feasible.
  • PATO never moved beyond raw idea stage, as far as I know, while legal work on the DPL has gone on for a few years, DPL 1.0 is complete, and the project is set for a public launch in February.

In 1993, software patents were new, and still opposed by Oracle and Microsoft. Since then both have become software patent aggressors and defend the idea of software patents.

Many companies that claim to dislike software patent aggression in 2013 will become aggressors over the next years, or their patents will be obtained and used by trolls and other aggressors. Becoming a DPL user now may be an effective way for such companies to avoid this fate, and avoid contributing to the stifling of equality, freedom, and innovation.

Addendum 20131202: Another difference between the PATO sketch and the DPL implementation is that the former includes “US$25/year” to be a member, while the latter is gratis. I assume that the nascent DPL Foundation will be able to attract adequate grants and other support, perhaps more than could be obtained through a membership fee, but the choice is at the least an interesting and important one.

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