Behind thecurtainlfnw2013

Software Patents:Who's Behind the Curtain?

4.27.2013
Deb Nicholson
Linuxfest Northwest

Part 1:Where do patents come from?

How do we measureinnovation?

Patents, Products, orIdeas?

Part 2:More money, more problems

Un-spoiler alert

- Patent suits are costing us a lot of money- Activity is increasing, not decreasing- Lawsuits aren't spurring innovation- Developers are fed up

...annual wealth lost from NPE lawsuits was about $80 billion...

(Bessen et al. 2011)

Patent suits involving NPEs

Source: PatentFreedom 2013. Data captured as of January 18, 2013.

Avoiding thickets, rewriting code and pulling features out is time-consuming and un-fun for developers.

More recent developments

- Patent aggression entities are getting bigger- Targets are getting smaller- Stack vs. special sauce

1,300 shell companies at Intellectual Ventures

"...patent trolls... are increasingly targeting users and adopters,
rather than makers of the technology:
this tactic is used an estimated
40% of the time."

Colleen V. Chien: Tailoring the Patent System to Work for Software and Technology Patents

Part 3:A solution for every pot

Patentability

- Patentable subject matter: new and useful, no algorithms


- Novel: you can't patent something people are already using



- Non-obvious: it can't be obvious to someone in that field



- Non-obvious: it can't be obvious to someone in that field

- Useful: must have utility and be possible

Here comes
the judge?

Big solutions == big money

Judicial Solutions

- Lower the plaintiff's incentive to sue

Judicial Solutions


- Set precedent that better upholds the existing statute

Judicial Solutions


- Set precedent that better upholds the existing statute

- Set precedent that treats software patents differently than other patents

We oughta pass a law!

Congress also ain't cheap

Legislative Solutions

- Improve the America Invents Act



- Get rid of patents altogether, or just software patents




- Make the plaintiff pay the legal fees, aka SHIELD




- Make the plaintiff pay the legal fees, aka SHIELD

- Raise patent or maintenance fees

Doesn't the government have people for that?

Can we make the USPTO enforce the existing statute in a helpful way?

Policy Solutions

- Require written descriptions and definiteness

Policy Solutions


- Allot more resources for software

Policy Solutions



- Stop assuming validity

Policy Solutions



- Stop assuming validity

- The Federal Trade Commission could step in

Community (whoo!)

Freedom isn't free

Ok, actually it is free,
but it requires some work

Community Solutions

- Defensive patent pool (OIN)

Community Solutions


- Identify relevant prior art

Community Solutions


- Identify relevant prior art - Defensive Patent License (DPL)

Community Solutions


- Identify relevant prior art - Defensive Patent License (DPL)

- Continue to build awareness and draw attention to the problem

For your reading "pleasure"Colleen V. Chien: Reforming Software Patents (Houston Law Review)Tom Ewing & Robin Feldman: The Giants Among Us (Stanford Law Review)Dan L. Burk & Mark A. Lemley: The Patent Crisis and How the Courts Can Solve It

Picture CreditsCC-BYGreen Curtain by Prairie Kitten, Ruler by SterlicParchment Paper by Temari09, Cargill Pool Grain Elevator by amerune, Dad's Teeth by Spider Dog,Chill Pill by mirjoran, Dark Ice by dcdailyphotos,Feeding Turtles by Ollie Crafoord, SCOTUS Stairs by Phil Roeder, Overview by jcbmac, Trust Fall by Vos EfxRoad by Jo@net

CC-BY-SALightbulb by eoin, Wet Grass by qgil

Graphs source: PatentFreedom 2013. Data captured as of January 18, 2013

Thanks! [email protected]

Behind thecurtainlfnw2013

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