Where are software patnets coming from? Why are there so many of them and what can deveopers do about it? Presented to the Bergen Linux User Group. During Q&A, I recommended Patent Absurdity as a source of more info on the infamous Texas court. That film is here, http://patentabsurdity.com/

1. Software Patents:
Who's Behind the Curtain?
10.12.2013
Deb Nicholson
Hello BLUG!

2. Part 1:
How did we get so many
patents?

3. Measuring
innovation

4. Patents, Products, or
Ideas?

5. Patentability in the US

6. - Patentable subject matter: new
and useful, no algorithms

7. - Patentable subject matter: new
and useful, no algorithms
- Novel: you can't patent something
people are already using

8. - 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

9. - 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

10. The US Patent Office
is granting 40,000
new software patents
each year.
(Source: A Generation of Software Patents, by James Bessen, 2011 )

11. Parallel Filing
Patents
Development

12. Part 2:
More money, more problems

13. 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

14. “...annual wealth lost from
NPE lawsuits was about $80
billion...”
(Bessen et al. 2011)

15. Patent suits involving “NPEs”
Source: PatentFreedom © 2013. Data captured as of January 18, 2013.

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

17. More recent developments
- Patent aggression entities
are getting bigger
- Targets are getting smaller
- Stack vs. special sauce

18. "...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

19. Suits deep at the stack level
deter innovation

20. Part 3:
A Global Problem

22. 1,300 shell
companies at
Intellectual Ventures

23. Certainty?

24. A headache even if
you don't get sued.

25. “Harmonisation”

26. Part 4:
Can't you guys fix it?

27. Courts cost
money

28. Congress

29. ...also ain't cheap

30. Policy change at the USPTO?

31. The USPTO could treat
software patents
differently

32. Part 5:
What can we as developers do?

33. Defensive
Strategies
Patent Pool
Non-Assert
Covenant
Scorched Earth
(Defensive
Filing)
Open Source
License
Patents
Threatening
Your Software

34. Community!

35. The bad news
Patent validity is not important
●
Patents == a chilling effect on development
● Your international customers can be sued
● Your company may expand abroad
● Future “intellectual property” treaties
●

36. The good news
Use a software license that mentions patents
●
Defensive filing (eg. Linuxdefenders.org)
● Non-assertion covenant
● Join a defensive patent pool (eg. OIN)
●

37. 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

38. Picture Credits
CC-BY
Green Curtain by Prairie Kitten, Ruler by Sterlic
Parchment Paper by Temari09, 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
Courtesy of Simon Phipps; Sydney Opera House, Paralell
Filing and Defensive Strategies Chart
Graphs source: PatentFreedom © 2013.
Data captured as of January 18, 2013

39. Thanks!
deb@openinventionnetwork.com