2(b) defines "defensively" differently; should use the same definition

[joshtriplett]

Section 2(b) allows a "Defensive Purpose" to include asserting a patent claim against any entity that has filed a patent lawsuit, with an exception for "so long as the Entity has not instituted the patent infringement lawsuit defensively in response to a patent litigation threat against the Entity". That defines "defensively" more narrowly than the rest of this agreement does, effectively to 2(a) rather than 2(b) or 2(c). In other words, given a company that adheres to this agreement, if that company files a defensive patent lawsuit based on 2(b) or 2(c), they open themselves up to patent lawsuits from other companies that adhere to this agreement. This seems like a bug: a patent lawsuit filed for a "Defensive Purpose" in accordance with this agreement should never open a company to lawsuits from other companies following this agreement.

I'd suggest changing 2(b) to explicitly re-use the definition of "Defensive Purpose" from this agreement.

[adavies42]

hmm, interesting. i’d’ve read 2(b)’s “defensively” as identical to the definition in 2 as a whole (“in response to a patent litigation threat against the Entity” covers 2(c)), but hey, i’m not a lawyer, so i’m not really used to looking for adversarial readings.

something like “so long as the patent infringement lawsuit was not filed, maintained, or voluntarily participated in for a Defensive Purpose as here defined” might be less ambiguous. (yay recursion!) but hey, i’m not a lawyer…

[joshtriplett]

i’d’ve read 2(b)’s “defensively” as identical to the definition in 2 as a whole (“in response to a patent litigation threat against the Entity” covers 2(c))

I'd be more concerned about 2(b)'s "defensively" not including 2(b) itself, actually. If company A has used patents offensively in the last ten years, then company B can sue company A for a Defensive Purpose under 2(b) of this agreement, but doing so potentially then allows company C to sue company B for a Defensive Purpose.

something like “so long as the patent infringement lawsuit was not filed, maintained, or voluntarily participated in for a Defensive Purpose as here defined” might be less ambiguous. (yay recursion!)

I had the same kind of recursive definition in mind.

[benltwitter]

hmm, that interpretation would definitely be a bug and not a feature. ;) a bit leery of a recursive definition, but definitely open to a patch on this. Or even an outright statement that a lawsuit filed for Defensive Purpose should never open a company to lawsuits from other companies following this agreement.

[joshtriplett]

Filed as pull request #14.