Defensive patenting---i.e., filing a patent specifically to avoid the threat of litigation---is a common strategy in the world of intellectual property for private companies focused on information technology. Free software and open source ("FOSS") projects, however, are historically wary of defensive patenting. Why is this? And what strategies might make defensive patenting more appealing to the FOSS community? In this talk, UC Berkley's Jason Schultz and Jennifer Urban propose a possible defensive patent strategy (including a proposed license) for FOSS and discuss the advantages and challenges (legal, economic, and cultural challenges) of their approach.
Jason M. Schultz is an Assistant Clinical Professor of Law and Director of the Samuelson Law, Technology & Public Policy Clinic at the UC Berkeley School of Law (Boalt Hall). Before joining Boalt Hall as a faculty member in the Samuelson Clinic, he was a Senior Staff Attorney at the Electronic Frontier Foundation (EFF). Prior to EFF, he practiced intellectual property law at the firm of Fish & Richardson, P.C. and served as a clerk to the Honorable D. Lowell Jensen of the Northern District of California.
At EFF, Schultz handled numerous high-profile intellectual property and technology matters affecting the public’s interests in free expression, fair use, and innovation with an emphasis on issues of copyright law, reverse engineering, digital rights management, and patent law reform. He also founded EFF’s Patent Busting Project.
His writing primarily focuses on the ongoing struggle to balance intellectual property regimes with the public interest in free expression, access to knowledge, and innovation in light of new technologies and the challenges they pose.
Jennifer M. Urban joined Berkeley Law in 2009 as an Assistant Clinical Professor of Law and Director of the Samuelson Law, Technology & Public Policy Clinic at the UC Berkeley School of Law. Prior to Berkeley Law Jennifer was at the University of Southern California’s Gould School of Law, where she founded and directed the USC Intellectual Property & Technology Law Clinic and taught classes on issues related to intellectual property, privacy and individual rights in a world of rapid technological and societal change.
At USC, Urban’s clinic students represented public interest clients in numerous cases and projects related to IP and technology law, including, for example: copyright legislative work on “orphan works;” consumer counseling work around web reputation and privacy; defensive patent licensing; and work with small filmmakers and other artists on fair use, licensing and free expression.
Prior to joining the USC faculty in 2004, she was the Samuelson Clinic’s first fellow, teaching as a lecturer and visiting professor at Berkeley Law. Prior to that, she was an attorney with the Venture Law Group in Silicon Valley.
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