Patent License Design

The Model Patent License is a simple and streamlined CC legal tool for licensing patents. It was originally developed to enable the standard licensing of patented technologies that have the potential to promote sustainability for the GX project, but Creative Commons will host and maintain it as a standard CC legal tool, so that will be made available for free to any member of the public to use for any purpose even outside of the context of GX.

Goals

The principle goals of the Model Patent License are:

• to facilitate standardized "public offers" to license patents in order to reduce negotiation costs and risks;
• to promote technologies that have the potential to improve global sustainability or public health; and
• to increase the number of patent licenses available for broad categories of innovative and entrepreneurial uses.

Features & Topics

Non-Exclusive License

The Model Patent License is a non-exclusive patent license, meaning that the patent owner can grant similar licenses to many parties. In contrast to an exclusive license, which gives exclusive rights to practice and sublicense to a single licensee, a non-exclusive license can be granted independently to many people and companies. Because exclusive licenses are typically more complicated and can only be granted to a single licensee, we chose not to work on standard exclusive licenses.

Discussion Topic: What are the roles of exclusive and non-exclusive licenses in different situations? Do you see a need for a model license that is an exclusive license?

Fields of Use

By default, the License allows the patent owner to authorize uses in all fields of use (i.e., without any field of use restriction). We deliberately designed the default this way to encourage patent owners to license for the broadest possible set of uses, consistent with our desire to promote innovative uses. However, if they choose to do so, licensors have the option to specify a particular field of use restriction for the license, by way of the License Data Record, which serves to define and delimit the scope of the license. We left the definition of the field of use free-form and how it is defined is at the discretion licensor. This flexibility is absolutely necessary to accommodate the widest possible range of fields that would be dictated by varying industries, markets, companies, and business models. In the future, we may work with certain industry groups and consortia to develop standard fields of use model that can be adopted as standards by particular industries, communities, or consortia.

Discussion Topic: Should we support the option to include a field of use restriction? Should we place any constraints on the way fields of use are defined? What are some opportunities for standardizing fields of use?

Fees & Royalties

The Model Patent License is free of any fees or royalties by default. We designed it this way to encourage patent owners to first consider making technologies available without fee in order to facilitate their widespread adoption and use for a wide range of socially important uses. However, the License gives the licensor the option to require fees or royalty payments in the License Data Record. If the licensor chooses to use this option, the licensor has the flexibility to define the license fee or royalty model in the License Data Record. While licensors have that ultimate flexibility, we strongly encourage licensors to implement fees that are reasonable and non-discriminatory.

Discussion Topic: Should we support the feature to have an optional fee structure? What constraints, if any, should be placed on that feature? How can we do more to encourage reasonable and non-discriminatory fees?

Licensed Patent Rights

The licensed patents or patent applications are listed in the License Data Record. Be sure to consider this list in light of the definition of Licensed Patent Rights. In particular, note that daughter applications (like continuations and divisions, as well claims of continuations-in-part that are entitled to claim priority back) are automatically included in the definition of the Licensed Patent Rights, but parent and grandparent applications are not automatically included (and therefore must be listed explicitly). This was done in order to promote greater certainty for both licensor and licensee. For while it is relatively simple through review of a patent file to discover parent or grandparent applications, it is not always possible to discover daughter applications. In addition, there is no way to unambiguously decide what claims of a parent application ought to be licensed, based on the priority rules. For these reasons, licensees are strongly encouraged to perform due diligence with respect the existence of priority patents applications in order to verify they have obtained licenses to all relevant patents owned by the licensor.