@evan @bnewbold @mmasnick My understanding (I am not a lawyer) is that pro-freedom patent pledges can be legally risky even for well-intentioned companies, unfortunately.

A company can make an internal decision to never enforce any of their patents, but then find themselves the target of incoming patent infringement claims for which the best defense is a counterclaim: "Oh yeah? Well, you're infringing some of ours. So how about we sit down and make a cross-licensing deal and call it even?"

Since competing companies tend to be in similar lines of business, the chances of them having mutually infringing patent claims are much better than random. Thus, having some patents in your back pocket -- even if you don't want nor intend to use them -- becomes a reasonable defensive tactic.

And it's not so simple to write a pledge that just says "We won't use our patents against anyone unless they use theirs against us first", either. What if another company uses patent infringement claims to restrict the options available to one of your partners / resellers / customers / whatever -- but it is you who have the patent portfolio that is able to make credible counterclaims? Since you weren't the one directly attacked, you'll now be violating your public pledge if you use your patents to protect freedom. Oops.

Mutual defense pools like OIN can help to address this transitive collective action dilemma, but they don't fully solve it. Fundamentally, the more legally binding public statements a company makes about what they won't do with their patents, the more they preëmptively tie their hands in some potential future patent-related dispute that is forced upon them by an outside party.

(There are, IIUC, other insidious things about the nature of patent law that make it hard for companies to even talk openly about what their plans are for their patents, or why they have acquired them, etc. Everything you say is there for your opponent's lawyers to pick apart some day, and it's hard to forecast the technical intricacies of every lawsuit or lawsuit-adjacent negotiation you might be involuntary involved in in the future. Open-ended promises are inherently risky.)

For these reasons, I am not judgemental about a company's patent portfolio, only about their actual patent behavior. It's wonderful & laudable when they make binding pro-freedom public promises -- but I hope that they do so with great care, and that they retain their ability to actually use whatever patent portfolio they may have to defend the commons when needed.

It's bad that we have a system that requires these counterintuitive tactics, but it's no particular company's fault that we're all operating in a bad system.