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Defensive patent pools

Red alert.png What this entry documents is not a solution.
This practice may be ineffective or useless in the long term.
ESP's position is that abolition of software patents is the only solution.

Not to be confused with Defensive patent acquisition.

Defensive patent pools is a proposal to reduce the harm of software patents to a specific group of software developers. On the plus side, there's no need to change legislation or gamble on a court case, but on the negative side, they can only solve a very small part of the problem.

Not all patent pools are defensive. Some, like MPEG-LA, are formed to maximise the danger of a certain set of patents. To differentiate, we'll call them patent cartels.

The most common goal is to protect developers of free software (such as GNU/Linux), so this article will use that example.

The idea

The general idea is that a group of patent holders who are friendly towards free software can "pool" their patents together and agree that these patents won't be used against free software developers, and that these patents may be used for counter-suing any patent holder that threatens free software developers.

Limits to effectiveness

  1. Most large patent holders already have non-aggression agreements with the other large patent holders, so this limits the utility of the pooled patents for counter-suing. (see: Patent non-aggression pacts)
  2. The members of the pool are, by definition, not the patent holders that we are afraid of.
  3. Counter-suing only works if you are being sued by a company that develops software. There is nothing that defensive patent pools can do against patent trolls (litigation companies that don't develop software).
  4. To quote Jason Schultz, former staff attorney at the EFF, "The perception is that bigger companies only commit their least-effective, least-important patents to a patent pool."[1]


Open Invention Network is the best known defensive patent pool.

Other patent pools

Defensive patent pools should not be confused with patent-licensing pools. An example of the latter is the MPEG Licensing Authority (MPEG-LA). MPEG-LA acts as a single representative for dozens of patent holders who claim their patents are essential for an implementation of the MPEG video formats. This might sometimes be described as a pooling of patents, but the purpose is to make enforcement against developers more severe, not to defend them.

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