`Exhibit A
`
`Bradium Exhibit 2049
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 1 of 38
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`

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`https://web.archive.org/web/20180517015601/https:/www.unifiedpatents.com/j
`oin/
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`Bradium Exhibit 2049
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 2 of 38
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`

`Bradium Exhibit 2049
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 3 of 38
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`

`

`Bradium Exhibit 2049
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 4 of 38
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`Exhibit B
`
`Bradium Exhibit 2049
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 5 of 38
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`

`

`https://web.archive.org/web/20180517015604/https:/www.eff.org/files/2016/0
`1/26/hacking_the_patent_system_belcher_and_casey_updated_january_2016.pdf
`
`Bradium Exhibit 2049
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 6 of 38
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`

` HACKING
`
`THE PATENT SYSTEM
`A GUIDE TO
`ALTERNATIVE PATENT LICENSING
`FOR INNOVATORS
`
`UPDATED JANUARY 2016
`
`BY MARTA BELCHER AND JOHN CASEY
`JUELSGAARD INTELLECTUAL PROPERTY & INNOVATION CLINIC
`STANFORD LAW SCHOOL
`
`
`Bradium Exhibit 2049
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 7 of 38
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`Table of Contents
`
`Introduction to Alternative Patent Licensing…………………………………….1
`The Patent System Is Broken…………………………………………………………1
`Innovators Are Hacking the System to Use Patents for Good………………...1
`Opting Out of the Patent System May Not Solve the Problem…………..……3
`These Hacks Highlight the Need for Patent Reform…………………………..…4
`Defensive Patent Aggregators………………………………………………..………4
`Unified Patents………………………………………………......……………………..4
`Allied Security Trust (AST)………………………………………………………….…6
`RPX Defensive Patent Acquisition Network......................................………..…8
`Patent Pledges……………………………………………………………………….……10
`Defensive Patent License (DPL)…………………………………..……………..…10
`Open Invention Network (OIN) ……………………………………...……………12
`Google’s License on Transfer Agreement (LOT)…………………………….….13
`Twitter’s Innovator’s Patent Agreement (IPA).……………………………….…15
`The Patent Pledge……………………………………………………………………16
`Google’s Open Patent Non-Assertion (OPN) Pledge…………………………18
`Mozilla Open Software Patent License Agreement (MOSPL)……….........…19
`Individual Pledges……………………………………………………………………20
`Patent Troll Insurance…..………………………………………………………….……21
`Unified Patents ‘Protect: Membership with Insurance’……....……………..…22
`RPX Insurance Services.............……………………………………...……………24
`Association of National Advertisers (ANA) Insurance Program………….....26
`Comparison Tables………………………………………………………………………29
`Overview of Options………………….…………………………………………………30
`
`
`
`
`
`This work is licensed under a Creative Commons Attribution 4.0 International License
`
`
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`i
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`Introduction to Alternative Patent Licensing
`
`
`The patent system is intended to incentivize innovation, but the current system often does the
`opposite. The traditional model of patent licensing—whereby a company pays a patent owner to
`license an invention that the company legitimately uses—has been hijacked by non-practicing
`entities (“patent trolls”) and other aggressive patent holders who assert overbroad patents that
`never should have been granted in the first place. Within this broken patent regime, companies
`are increasingly hacking the system—that is, finding alternatives to the traditional patent
`licensing model in order to both promote open innovation and protect the companies themselves.
`These strategies can be organized into three broad categories: (1) defensive patent aggregators,
`which pool member companies’ resources to defensively purchase patents for the group and to
`fight patent trolls; (2) patent pledges, whereby companies opt to openly and defensively license
`their patents to others; and (3) patent troll insurance. This paper provides a guide to these
`alternative patent licensing options for small companies and startups that care about protecting
`themselves and not making a broken patent system any worse.
`
`The Patent System Is Broken
`
`
`The core purpose of the patent system is to incentivize innovation. Patents give inventors
`monopolies over their inventions for a period of time in order to allow inventors to recoup the
`costs of R&D and to generate profits that reward inventors’ efforts—thereby encouraging future
`investments. In exchange, patentees dedicate their inventions to the public domain once their
`patents expire.
`
`Yet, in many high-technology industries today, the patent system is a scourge on innovation.
`Patent trolls buy overbroad patents, often from bankrupt companies, for the sole purpose of
`extorting licensing revenues from companies that are actually innovating and creating new
`products. Overworked patent examiners increasingly grant overbroad, obvious, and non-novel
`patents—particularly on software. Some companies aggressively assert their patent portfolios to
`keep legitimate competitors out of the market entirely. Small companies are particularly
`vulnerable, since the cost of fighting a lawsuit (even a flagrantly frivolous one) could easily put a
`startup out of business. Faced with the constant threat of crippling litigation, small companies
`often perceive their best—or only—option to be laying low and hoping to stay off patent
`holders’ radar.
`
`Innovators Are Hacking the System to Use Patents for Good
`
`
`Fed up with the patent mess left by Congress, the U.S. Patent and Trademark Office, and the
`courts, companies are collaborating to formulate private solutions. These patent licensing
`alternatives broadly fit into three categories: defensive patent aggregators, patent pledges, and
`patent troll insurance.
`
`Defensive patent aggregators use membership fees to purchase patents and give perpetual
`licenses to members so that future owners of the patents (should the organization subsequently
`sell the patents) cannot sue members for infringement. Defensive patent aggregators are different
`
`
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`from trolls because they buy patents solely for defensive purposes and promise never to assert
`the patents they own. These organizations often also use membership fees to challenge patents
`that may be asserted against their members. Defensive patent aggregators include Allied Security
`Trust, which uses a bidding system to distribute the cost of purchasing each patent among the
`members who are most interested in each patent; RPX, which buys patents and patent rights on
`behalf of all of its members; and Unified Patents, which purchases and challenges patents in
`specific technology areas.
`
`Patent pledges are public commitments that companies make to license their patents in a manner
`that supports open innovation. By committing to the Defensive Patent License, for example,
`companies opt into a network in which each company has promised not to sue any other
`company in the network for patent infringement, except defensively. The Open Invention
`Network owns hundreds of patents that it licenses for free to any company that promises never to
`assert its own patents against Linux technology. Through the License on Transfer Agreement,
`participants agree to license their patents to all other participating companies, but each license
`only becomes effective if the patent is transferred to a third party. Companies can also make
`pledges unilaterally. For example, in its Innovator’s Patent Agreement, Twitter makes a
`commitment to its employee inventors that it will not make offensive use of any patent without
`the inventor’s permission. Other examples of unilateral pledges include The Patent Pledge,
`through which companies promise not to sue small startups for software patent infringement;
`Google’s promise through the Open Patent Non-Assertion Pledge not to assert certain patents
`against those who implement open source software; and Tesla’s opening of its patent portfolio to
`the public royalty-free.
`
`Two defensive patent aggregators—RPX and Unified Patents—as well as a professional
`organization for advertisers are now offering insurance to protect companies against the threat of
`patent troll litigation. Policyholders pay an annual premium, and if a patent troll sues, the
`insurance reimburses for certain defensive expenses, which may include litigation expenses, pre-
`litigation expenses, or settlement costs, depending on the policy. Insurance can provide much-
`needed predictability for companies that are worried about the sudden cash drain associated with
`a patent troll lawsuit—particularly small companies that could be crippled by such expenses. In
`many cases, insurance also provides the resources necessary to fight trolls on the merits rather
`than quickly settling a lawsuit just to avoid legal fees. Trolls often depend on the high cost of
`litigation to force their targets to settle, even when the trolls’ legal claims are dubious. For this
`reason, insurance that provides funds to defend a claim can help deter against troll lawsuits in the
`first place.
`
`Each option described in this paper has tradeoffs both for individual companies and innovation
`as a whole. Patent pledges, for example, make a powerful public statement about a company’s
`values, and can attract talent and publicity. On the other hand, pledging to openly license a patent
`might lower the patent’s market value and, consequently, the company’s value for potential
`buyers and investors. Defensive patent aggregators require annual membership fees that may be
`prohibitively expensive for some companies, but the licenses and patent intelligence services that
`come with membership may be well worth the cost for others. This paper explores these options
`and analyzes some of the drawbacks and benefits of each for small companies and startups, with
`
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`the understanding that every company must consider its own unique situation in deciding
`whether to participate in any (or all) of these alternatives to traditional patent licensing.
`
`Opting Out of the Patent System May Not Solve the Problem
`Many of the patent licensing alternatives described in this paper—particularly patent pledges—
`assume that participants have obtained patents of their own. However, many innovators who
`have understandably lost faith in the patent system have opted out by declining to seek patents on
`their own inventions.
`
`There are many reasons that companies may opt out of the patent system. Obtaining a single
`patent can cost $20,000 in legal fees, if not more, and the process can take many years. Some
`conscientious employees may be reticent to patent their inventions and assign them to their
`employers out of fear that the patents will later be abused. Once a patent is obtained, asserting it
`offensively may reflect poorly on the company, alienating current and potential employees as
`well as the public. If the company were to fail, the patents would likely be sold, and might
`ultimately fall into the hands of a bad actor.
`
`However, for companies that are concerned with both self-preservation and furthering
`innovation, there may be some inherent benefits of obtaining patents in the first place:
`
`
`(cid:120) First, patents can be used defensively in infringement lawsuits brought by competitors.
`
`Defendants in patent infringement lawsuits can countersue the plaintiff for infringing one
`of the defendant’s own patents. This, of course, assumes that the plaintiff has products of
`its own that could infringe, which is not the case with many trolls or other non-practicing
`entities like universities—but it makes patents valuable for defending against litigious
`competitors as well as deterring lawsuits from competitors in the first place.
`
`(cid:120) Second, patenting an invention clarifies the prior art and can help prevent future patents
`
`on overbroad or obvious technologies. All patented inventions must be novel and non-
`obvious. When determining whether to grant a patent, patent examiners in the U.S. Patent
`and Trademark Office look for “prior art” that evidences that the technology had been
`invented before or is obvious in light of previous inventions. Patent examiners have
`limited time to conduct their research, however, and often miss important prior
`inventions. One of the most important sources for identifying prior art is other patents.
`Patenting an invention thus helps clarify who invented what, and can help to prevent bad,
`obvious, or overbroad patents from being granted in the future.
`
`(cid:120) Third, patenting an invention may help prevent others from claiming it as their own.
`
`Keeping an invention a trade secret rather than patenting it runs the risk that another
`company could independently invent and try to patent the same thing. (Patent law
`includes a prior use defense, but only if the original inventor was using the invention
`more than one year before the subsequent inventor filed its patent, and even then there are
`limitations to how the original inventor can use the technology.) Original inventors can
`also simply publicly disclose the invention without filing a patent application, which may
`serve as prior art to prevent others from patenting the disclosed invention.
`
`3
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`
`For companies that choose to obtain patents rather than opting out of the patent system entirely,
`the alternative patent licensing options described in this paper provide opportunities both to
`engage with the patent system and to use patents for good.
`
`These Hacks Highlight the Need for Patent Reform
`
`
`The existence of these alternative patent licensing options does not supplant the need for patent
`reform; to the contrary, the necessity of these hacks demonstrates innovators’ continuing struggle
`to be free to operate. Rather than focusing their time, effort, and resources on innovating,
`companies are forced to turn to these options in an attempt to mitigate the damage caused by
`patent trolls and a broken patent system.
`
`Some of these alternative patent licensing options help to ensure that members’ own patents will
`not fall into the hands of trolls, some harness members’ collective buying power to limit the
`number of patents on the market available to trolls, and some use members’ pooled resources to
`challenge bad patents. However, none of these options can fully protect innovators from trolls. In
`order to completely address the problems driving innovators to turn to these patent system hacks,
`Congress must act.
`
`
`Defensive Patent Aggregators
`
`
`
`Defensive patent aggregators use the pooled resources of member companies to purchase patents
`that may otherwise have been purchased by trolls or aggressive companies and asserted against
`members. After purchasing each patent, aggregators grant perpetual licenses to their members, so
`that even if the patent later falls into a troll’s hands, the patent can never be asserted against
`those members. Some aggregators also challenge, invalidate, or amass prior art on patents that
`may be threats to members. Aggregators typically charge an annual membership fee that is
`calculated based on each company’s size. Many aggregators also offer patent intelligence and
`other services to members.
`
`
`
`
`Unified Patents
`What It Is
`
`
`Unified Patents is a subscription-based patent risk management organization. Unified identifies
`specific technology areas that it calls “Zones,” and works to monitor and defend each Zone’s
`technology from patent troll assertions. As of July 2015, Unified has five active Zones: cloud
`storage, content delivery, wireless, automotive, and electronic patents. Companies decide which
`Zones they would like to join and contribute annual membership fees in exchange for
`intelligence, statistics, legal support, and deterrence measures in those Zones. Smaller startups
`can join for free.
`
`Unified was founded in 2012 by former Intuit Head of Intellectual Property Litigation Kevin
`Jakel, with founding members including Google and NetApp.
`
`
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`4
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`
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`
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`How It Works
`
`
`For an annual subscription fee, companies join a Zone that focuses on protecting a particular
`technology area from patent trolls. Subscription fees vary based on the company’s size and the
`number of Zones the company seeks to join, but startups can join for free as of the time of
`writing. The cost of joining for non-startups ranges from $35,000 to $400,000 per Zone.
`
`Unified’s goal is to reduce the costs and risks associated with NPE activity in each Zone,
`ultimately deterring future troll assertions. Unified uses each Zone’s subscription fees to
`challenge troll-owned patents in the U.S. Patent and Trademark Office through ex-parte
`reexamination, inter partes review, and post-grant review proceedings, and to purchase patents
`before trolls can (but never to purchase patents from trolls). When Unified purchases a patent, all
`Zone members receive an immediate, perpetual license to that patent. Fees are also used to
`monitor troll activity, investigate prior art, and develop legal resources and acumen in certain
`technology areas.
`
`Unified’s belief is that the participation of startups helps everyone, with the understanding that
`small companies are often the first to receive troll demand letters and are often the most
`vulnerable targets. By encouraging startups to participate with low-cost (or free) membership,
`Unified gains valuable insight into troll demand letter campaigns as soon as they begin.
`Furthermore, when startups join Unified, they gain protection from certain troll demands,
`limiting the number of easy troll targets.
`
`In October 2015, Unified Patents launched its Protect: Membership with Insurance program,
`offering a new membership tier that includes patent troll insurance. This program is described on
`page 22 in the “Patent Troll Insurance” section.
`
`(cid:120) Unified encourages startups and small companies to participate by taking into account
`(cid:120) By including small companies and some of the world’s largest tech companies in each
`(cid:120) Unified focuses its efforts on specific technology areas, unlike defensive patent
`(cid:120) Unified makes all decisions regarding whether and when to challenge a patent in inter
`
`
`
`
`
`
`
`
`
`Pros
`
`company size in calculating membership fees, and (as of the time of writing) offering
`membership to some startups for free.
`
`
`Zone, startups benefit from larger companies’ monetary resources, while larger
`companies benefit from broader membership in the Zone, early insight into troll
`activities, and a stronger industry-wide deterrent effect.
`
`aggregators that broadly acquire any high-risk patents. This assures companies that
`operate in a specific technology space that their membership fees and resources are used
`to protect only what they care about.
`
`
`partes review. While this means that members do not have say in these decisions, it
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`should allow members to benefit from inter partes review of dubious patents without
`becoming the “real parties-in-interest” in the review. A “real party-in-interest” in an inter
`partes review that reaches a final decision cannot later defend a patent infringement
`lawsuit using any argument that could have been raised during that inter partes review.
`
`members can be comforted that their membership fees will never, even indirectly, support
`troll activities. Furthermore, because Unified never pays trolls, it does not incentivize
`trolls to enter a Zone it protects.
`
`
`their own patents to other Zone members.
`
`Cons
`
`(cid:120) Unified refuses to pay trolls for patents, licensing, settlement, or any other activity, so
`(cid:120) Members do not give up any of their own patent rights, nor are they required to license
`(cid:120) The narrow, technology-specific Zone approach means that not all companies will fit
`(cid:120) Unified refuses to buy patents from trolls, so members do not benefit from potentially
`(cid:120) Compared to RPX, Unified currently has fewer patent assets and less patent-purchasing
`
`within one of Unified’s Zones of protected technology.
`
`dangerous patents being purchased directly out of trolls’ hands.
`
`activity.
`
`Allied Security Trust (AST)
`What It Is
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Allied Security Trust (AST) acquires patents on behalf of its member companies based on a
`bidding system that distributes the cost of each patent among only those companies that are
`interested in purchasing it.
`
`AST has about 30 members. The publicly identified members include Google, IBM, Intel,
`Oracle, Philips, Cisco, Microsoft, Ford, and Sony.
`
`
`
`How It Works
`
`
`Companies pay an annual fee for AST membership. The annual fee is tiered based on company
`size, ranging from $25,000 for companies with up to $250 million in revenue, up to $200,000 for
`companies with more than $4 billion in revenue. Members have access to AST’s tool for
`analyzing available patents and can participate in collective purchases of assets in which they are
`interested.
`
`AST’s tool provides members with basic information about patent portfolios available for
`purchase, including the number of patent families in an available portfolio, the marketing
`
`
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`materials provided by the seller, the technologies that the assets cover, and the products that they
`could potentially impact. AST holds calls with its member companies to review available assets
`that could be relevant to that member. After reviewing available patents, an AST member may
`decide to bid on the patents through AST, or seek to purchase them on their own or through an
`alternate channel. Without divulging identifying information, AST communicates common
`interest to other members to foster collaboration. Each member makes its own decision about the
`value of a patent license and provides a bid of that amount to AST. AST combines funds and
`uses as little of each member’s money as possible while still seeking to provide the seller a
`market rate. A typical AST purchase involves three or four member companies contributing to
`the cost of the patent. Members thus share the cost of acquiring useful patents while controlling
`the amount they bid and maintaining anonymity under most circumstances.
`
`Once a patent or portfolio is acquired, the AST members that funded the purchase receive a
`perpetual, irrevocable, non-exclusive license that continues even if the companies leave AST. A
`member company that did not participate in the initial acquisition may obtain a subsequent
`license through a Subsequent License Option (SLO). The licensing fee for an SLO is always
`equal to the highest price paid by one of the initial funders. The proceeds from the SLO are then
`given to the original bidders, allocated using a formula that pays back members that spent the
`most first. New members are allowed to take an SLO to any portfolio currently owned by AST.
`
`AST engages in a “catch, license, and release” model for patents rather than aggregating patents.
`AST purchases a patent, licenses it to members, and then sells the patent (with the licenses still
`binding all future owners), and distributes the proceeds among the members that funded the
`acquisition. AST does not take any commission through this process, nor does it charge members
`for its services in acquiring patents beyond the annual contribution.
`
`AST does not proactively challenge patents in U.S. Patent and Trademark Office proceedings,
`but it does intervene in active litigation upon member request.
`
`
`
`Pros
`
`the patents they want rather than paying for licenses in technology areas irrelevant to
`their businesses.
`
`If a member leaves AST, the patents they have licensed go with them, which gives
`companies flexibility to leave.
`
`
`(cid:120) AST avoids the “one size fits all” aggregation model by allowing members to bid only on
`(cid:120)
`(cid:120) AST purchasing decisions can move quickly, and the “delivery date” of a patent is within
`(cid:120) Members include some of the world’s largest tech companies, which means smaller
`(cid:120)
`
`
`
`
`
`
`
`a few weeks of an accepted offer, which can be an advantage for fast-paced companies.
`
`
`companies can benefit from their purchasing power.
`
`In addition to getting a license to the patent, early bidders get money back when other
`member companies later license the patent, and when AST ultimately sells the patent.
`
`7
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`
`they required to license their own inventions to other members.
`
`Cons
`
`(cid:120) Members do not give up any of the rights to their own, non-AST patent portfolios, nor are
`(cid:120) For privacy-sensitive companies, AST conducts most of its transactions completely
`(cid:120) AST buys and sells patents on the open market, which means that AST may be feeding
`
`
`
`
`
`
`
`
`
`anonymously. However, when AST sells patents on the open market, the name of the
`patent’s licensees can be disclosed to potential buyers against the member’s will (by a
`majority vote of other members licensed to that portfolio).
`
`patent trolls by buying patents from them, and that the patents AST owns may later fall
`into the hands of trolls. AST members that contributed to the purchase of those patents
`have perpetual licenses and cannot be attacked with these patents, but members with
`strong anti-troll convictions may take exception to the idea of indirectly doing business
`with trolls.
`RPX Defensive Patent Acquisition Network
`
`What It Is
`
`
`RPX is a membership-based patent risk management service that acquires patent rights to license
`to members for defensive purposes, provides patent intelligence, and offers insurance policies to
`cover the legal and settlement costs of being sued for patent infringement.
`
`RPX was founded in 2008 by John Amster and Geoffrey Barker, both former vice presidents of
`controversial patent assertion entity Intellectual Ventures. As of January 2016, nearly 250
`companies are members, including Google, Microsoft, Oracle, and Intel.
`
`
`
`How It Works
`
`
`Companies join RPX for an annual membership fee calculated based on the client’s annual
`financial results. As of 2014, annual fees ranged from $85,000 to around $7 million. Each
`member receives a license to all patent rights that RPX owns. These licenses last for as long as
`the company remains a member of RPX, with licenses becoming perpetual after a certain number
`of years of membership. Members do not give up any of their own patent rights, nor are they
`required to license their own patents to other members.
`
`As of March 2014, RPX had spent $810 million on acquiring patents and patent rights for its 178
`members. RPX purchases rights to high-value or high-risk patents on the open market—
`sometimes only buying licenses for its members, and sometimes acquiring the entire patent,
`which preempts trolls from buying the patent. RPX also buys patent rights out of active litigation
`in which its members are defendants. RPX claims to have prevented more than 3,000 lawsuits
`and claims to have intervened to secure dismissals for clients more than 800 times.
`
`
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`RPX members also gain access to the RPX client portal—an online resource with detailed
`profiles of NPEs, overviews of the litigation history and chain of title of individual patents, and
`other market intelligence. In May 2014, RPX announced the launch of a free search engine that
`allows users to search RPX’s proprietary database for every U.S. patent and application, every
`U.S. district court patent litigation action since 2000, and every patent owner and party in
`litigation today. The tool also allows users to create custom alerts for patent troll activities.
`
`RPX’s insurance offerings are described on page 24 in the “Patent Troll Insurance” section.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`(cid:120) RPX not only purchases patents preemptively, but also intervenes in active litigation in
`(cid:120) RPX’s size gives it massive purchasing power to buy patents and license them to
`(cid:120) Members do not give up any of their own patent rights, nor are they required to license
`(cid:120) RPX’s online client portal is a useful tool, particularly for companies with in-house
`(cid:120) RPX appears to buy patents and patent rights from trolls, which members might find
`(cid:120) RPX sometimes sells patents (after licensing them to its members) and is willing to sell to
`(cid:120) Licenses only last for as long as a company remains a member of RPX—though licenses
`(cid:120) RPX’s business model is being challenged in court. A patent troll called Cascades
`
`Pros
`
`which clients are defendants.
`
`members. RPX claims to represent 10% of transaction activity on the open market. As
`RPX grows in size, so does its usefulness to its customers.
`
`their own patents to other members.
`
`attorneys. RPX’s free search engine offers a limited view into RPX’s database.
`
`
`Cons
`
`
`
`objectionable.
`
`trolls. While its members should be safe from these patents, all other companies—large
`and small—could be attacked by trolls armed with patents sold by RPX.
`
`become perpetual after a certain number of years of membership. Companies that choose
`not to renew membership before their licenses become perpetual may suffer some
`diminution of rights.
`
`Computer Innovation (CCI) sued RPX and some of its members alleging antitrust
`violations and a conspiracy to “monopsonize” the market (that is, drive down the prices)
`for certain patents. The judge tossed out CCI’s conspiracy allegations, but the antitrust
`claims survived a motion to dismiss, and a jury trial is tentatively scheduled for January
`2017. However, since CCI’s patent has been found not infringed in another lawsuit, it is
`
`9
`
`Bradium Exhibit 2049
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 17 of 38
`
`

`

`(cid:120)
`
`possible that the judge will dismiss the lawsuit against RPX for lack of damages.
`
`It is troubling for one entity to own so many patents. While RPX has promised never to
`assert or litigate the patents in its portfolio, its business model could change, and it might
`assert its patents through shell companies in a manner similar to Intellectual Ventures.
`
`
`Patent Pledges
`
`
`Patent pledges are commitments that companies make to license their own patents in a particular
`way. Many of the pledges described in this paper are multilateral pledges through which
`companies opt into networks with other companies that have made the same pledge (for
`example, by promising not to offensively assert patents against any other member of the network
`that has made the same commitment). Pledges can also be made unilaterally, and any company
`can create its own pledge to license its patents in a way that benefits open innovation—for
`example, by promising that the company will never assert its employees’ patents offensively
`without each inventor’s permission. Pledges offer a way for companies to continue to patent their
`inventions while assuring the public—and potential employees—that their patents will be used
`responsibly.
`
`
`
`
`The Defensive Patent License (DPL)
`What It Is
`
`
`The Defensive Patent License (DPL) is like a non-aggression pact for patents: companies
`commit to never asserting any of their patents offensively against any other company that has
`also committed to the DPL.
`
`Berkeley Law Professor Jennifer Urban and New York University Law Professor Jason Schultz
`launched DPL 1.1 in November 2014.
`
`In the interest of full disclosure, representatives from Engine, the Electronic Frontier Foundation,
`and the Open Invention Network who participated in preparing this paper also serve on the DPL
`Advisory Board.
`
`
`
`How It Works
`
`
`Any company can opt into the DPL network by pledging never to assert any of its patents against
`any other company in the DPL network, except