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Building on the Tesla Approach to Patents

In a blog post titled “All Our Patents Are Belong To You,” Tesla Motors last week declared that it would not mount patent lawsuits against anyone who uses their technology “in good faith.” While the company stated that it was doing so “in the spirit of the open source movement,” it offered few specifics.

Jason Schultz, a law professor and director of New York University’s Technology Law & Policy Clinic, believes a more formal process is needed. Together with Jennifer Urban, a law professor at UC Berkeley, he’s drafting what he calls the Defensive Patent License—a Creative Commons-style license for patents that makes it easy for companies to share.

The DPL, which will be formally launched in November at a conference in Berkeley, draws on the spirit of open source software and the so-called “copyleft” movement, where coders and companies put a premium on freely sharing their ideas.

This isn’t the first stab at deterring offensive patent litigation. Two years ago, Twitter created the Innovator’s Patent Agreement, which gives its engineers and designers discretion over what offensive lawsuits the company would file. Twitter posted the agreement to GitHub and urged others to adopt it, but it’s gained little traction.

The new defensive patent proposal comes at a time when Congress—and the U.S. business community—remain at loggerheads over patent reform proposals that might reduce innovation-killing litigation. Tech startups and Internet companies have long complained about frivolous patent litigation, but many big companies that own lots of patents don’t support major changes in the law.

The Information spoke with Mr. Schultz about the DPL, patent reform and what it all could mean for the tech industry.

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