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Software Patents:
Who's Behind the Curtain?
4.27.2013
Deb Nicholson
Linuxfest Northwest
Part 1:
Where do patents come from?
How do we
measure
innovation?
Patents, Products, or
Ideas?
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
- Patentable subject matter: new
and useful, no algorithms
- Novel: you can't patent something
people are already using
- 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
- 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
Here comes
the judge?
Big solutions == big money
Judicial Solutions
- Lower the plaintiff's incentive to sue
Judicial Solutions
- Lower the plaintiff's incentive to sue
- Set precedent that better upholds
the existing statute
Judicial Solutions
- Lower the plaintiff's incentive to sue
- 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
Legislative Solutions
- Improve the America Invents Act
- Get rid of patents altogether,
or just software patents
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
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
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
- Require written descriptions
and definiteness
- Allot more resources for software
Policy Solutions
- Require written descriptions
and definiteness
- Allot more resources for software
- Stop assuming validity
Policy Solutions
- Require written descriptions
and definiteness
- Allot more resources for software
- 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
- Defensive patent pool (OIN)
- Identify relevant prior art
Community Solutions
- Defensive patent pool (OIN)
- Identify relevant prior art
- Defensive Patent License (DPL)
Community Solutions
- Defensive patent pool (OIN)
- 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 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
Thanks!
deb@openinventionnetwork.com

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