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The Problem in a Nutshell
Why should I Participate?
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General Notes

Why should I agree to the Open Patent License?

  • If I am a business:


    Because it will enable you to use more patents, because it will provide you with a greater bargaining position to use when convincing others to similarly license their patents for your use, because it will help you keep your most innovative employees, because it will give them reason to innovate even more, and last of all, because it's a way of making your competitors work for you.


    The question of whether to participate is a combination of an ethical choice and a cost-benefit analysis.

    Most businesses, and their engineer and scientist employees especially, tend not to want to overly restrict the use of intellectual properties through royalties and threats of lawsuits, but they rarely disagree with using patent portfolios for defensive and cross-licensing purposes. The OPL allows you to retain the defensive benefits of a patent portfolio while increasing your bargaining position in intellectual property negotiations, and will help you convince another company to similarly cross-license the patents of theirs that you need.

    The reason is that when you aim to convince your opponents to submit their patents to the OPL Pools by using one of the OPL Options, (as opposed to convincing them to submit their patents to a private cross-licensing pool), instead of just bargaining with your own patent portfolio on your side, you will be bargaining with the entire set of patents from relevant OPL patent pools on your side.

    Participating in the OPL will also help convince your engineers and scientist employees that the ideas they generate are open for all to use. That can have deeper repercussions than might appear at first glance.

    Granted, giving the world access to increased scientific knowledge and engineering techniques sounds pleasant, but from a business perspective, why might this be even more of a concern? Well, do you want your employees to be afraid to come to you with their ideas and innovations? When you patent their ideas and license the patents restrictively, you limit what they can do with those ideas in the future.

    Whether you like to think about it or not, most of your employees will have considered the possibility of pursuing their ideas on their own, or even with one of your competitors at some time in the future. The normal corporate response to such a possibility is to have a policy of restricting the use of the ideas their employees generate. In other words, corporations generally tell their employees that any of their ideas will be owned by this company, controlled by this company, and only be permitted to be used by others under restricted conditions. Employees who present their ideas and innovations to such companies do so at their peril--if they present these ideas and innovations to you, they may never be able to use them themselves. They know that helping you destroys their future--or at least it closes doors to future possibilities.

    They will tend to want to help you solve problems with patentable methods when they perceive short-term gains that outweigh the long-term risks of strengthening your monopolies. You can increase the short-term gains, (pay them more, provide for a better workplace, etc.), but you can also lower those long-term risks. You can lower those long-term risks by agreeing to a high-enough option of the OPL. After so agreeing, they can freely and eagerly solve problems for you without worrying that doing so might be putting their own future in jeopardy.

    Even if they do decide to leave your company in the future, they cannot use these patents of yours to take unfair advantage of you. Those terms and conditions of the OPL in effect mean that they can't keep from you any patents derived from your OPL-Pooled patents. If you licensed your most valueable and broad patents widely enough under certain OPL Options, you will still be able to use innovations based on your patent, even when made by an ex-employee who now works for a competitor. The reason is that the OPL only allows use of patents in a work when all patents incorporated in the work are similarly licensed. By making your most broad, most useful, and most valuable patents available under OPL Options such as Option 2, 3, 4, or 5, instead of getting simple monetary royalties from anyone using the patents, you will instead get as royalties the right to use your competitors' patents and your ex-employees' patents that are incoporated in any product that need to use this valuable patent of yours.

    Adopting the OPL is a way of fostering innovation, a way of making your ex-employees work for you, and a way of making even your competitors work for you.

  • If I write software

    All patents submitted under the OPL appear in OPL Patent Pool F, the Free Software/Open Source pool. If you write Open Source software, (which by its nature cannot be be monopolized by its writer), you may incorporate any patents from OPL Patent Pool F.

    If you write non-Open Source software that only contains patents from OPL Pool 1, the license will allow you to incorporate any of those patents. If you need to incorporate a patent that is not in OPL Pool 1, it will probably be cheaper to have that patent added to OPL Pool 1 than to separately license the use of all incorporated patents.

    If you write non-Open Source software that only contains patents from OPL Pool 2, the license will allow you to incorporate any of those patents, but only if you agree to license all of the intellectual property that OPL Option 2 covers. If you need to incorporate only one additional patent that is not in OPL Pool 2, it will probably be cheaper to have that patent added to OPL Pool 2 than it would be to separately license the use of all incorporated patents. If instead, you have not agreed to PPL Option 2, it is even more likely to be cheaper for you to agree to Option 2 than to separately license all incorporated patents.

  • If I am a researcher:

    Patents slow fundamental research, and are in conflict with the principles of peer review, as well as the notion of furthering the use of discoveries. Submitting patents under the Open Patent license means those patents can be used by anyone who is not similarly withholding their own patented techniques from you, thus lessening the restrictions on the flow of knowledge while not putting your supporting institution at a financial disadvantage.

February 10 2000 04:30:21 UTC
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