On Sun, Jun 20, 2021 at 12:40:46PM -0700, Bradley M. Kuhn wrote in pertinent part:
Upon reading this, I wonder if this is really necessary? I remember when I
first read it back in 2012, I thought “oh, great use of a patent poison
pill”, but now I'm dubious.
The reason I'm now dubious about it is that patents are even more weaponized
and more consolidated than they were previously. Frankly, I'm am just *not*
sympathetic to a litigation between two patent holders, which is the most
likely use of this clause. Specifically, it's a case like this:
Company Foo sues Company Bar for patent infringement. Company Bar exercises
this clause, terminates rights, and then immediately sues a counterclaim.
Foo has no rights under copyleft-next, but Bar retains their rights.
But what about declaratory judgment lawsuits? What about situations where
Bar was actually the patent aggressor out-of-court and Foo preemptively
acted? (I was recently reading that something like this happened in the
real world.)
So, in summary, I think a smart patent aggressor can manipulate the
situation and find themselves being the one in the cross-claim/counterclaim
situation.
Nuking it sounds like a good idea at this point. In the present climate the clause
basically creates more destruction than good. Things kinda got really weird since 2012.
Stephen Michael Kellat