Behind thecurtainyapc2013

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Where are all these software patents coming from and what can we do about it?

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  • 1. Software Patents: Who's Behind the Curtain? 6.7.2013 Deb Nicholson SELF

2. Part 1: Where do patents come from? 3. How do we measure innovation? 4. Patents, Products, or Ideas? 5. Part 2: More money, more problems 6. 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 7. ...annual wealth lost from NPE lawsuits was about $80 billion... (Bessen et al. 2011) 8. Patent suits involving NPEs Source: PatentFreedom 2013. Data captured as of January 18, 2013. 9. Avoiding thickets, rewriting code and pulling features out is time-consuming and un-fun for developers. 10. More recent developments - Patent aggression entities are getting bigger - Targets are getting smaller - Stack vs. special sauce 11. 1,300 shell companies at Intellectual Ventures 12. "...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 13. Suits deep at the stack level deter innovation 14. Part 3: A solution for every pot 15. Patentability 16. - Patentable subject matter: new and useful, no algorithms 17. - Patentable subject matter: new and useful, no algorithms - Novel: you can't patent something people are already using 18. - 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 19. - 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 - Useful: must have utility and be possible 20. Here comes the judge? 21. Big solutions == big money 22. Judicial Solutions - Set precedent that better upholds the existing statute 23. Judicial Solutions - Set precedent that better upholds the existing statute - Lower the plaintiff's incentive to sue 24. Judicial Solutions - Set precedent that better upholds the existing statute - Lower the plaintiff's incentive to sue - Set precedent that treats software patents differently than other patents 25. We oughta pass a law! 26. Congress also ain't cheap 27. Legislative Solutions - Improve the America Invents Act 28. Legislative Solutions - Improve the America Invents Act - Get rid of patents altogether, or just software patents 29. 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 30. 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 - Raise patent or maintenance fees 31. Doesn't the government have people for that? 32. Can we make the USPTO enforce the existing statute in a helpful way? 33. Policy Solutions - Require written descriptions and definiteness 34. Policy Solutions - Require written descriptions and definiteness - Allot more resources for software 35. Policy Solutions - Require written descriptions and definiteness - Allot more resources for software - Stop assuming validity 36. Policy Solutions - Require written descriptions and definiteness - Allot more resources for software - Stop assuming validity - The Federal Trade Commission could step in 37. Community (whoo!) 38. Freedom isn't free 39. Ok, actually it is free, but it requires some work 40. Community Solutions - Defensive patent pool (OIN) 41. Community Solutions - Defensive patent pool (OIN) - Identify relevant prior art 42. Community Solutions - Defensive patent pool (OIN) - Identify relevant prior art - Defensive Patent License (DPL) 43. Community Solutions - Defensive patent pool (OIN) - Identify relevant prior art - Defensive Patent License (DPL) - Continue to build awareness and draw attention to the problem 44. 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 45. Picture Credits CC-BY Green Curtain by Prairie Kitten, Ruler by Sterlic Parchment 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 Efx Road by Jo@net CC-BY-SA Lightbulb by eoin, Wet Grass by qgil Graphs source: PatentFreedom 2013. Data captured as of January 18, 2013 46. Thanks! [email protected]