software patents after alice: a long and sad tail
TRANSCRIPT
Software Patents After Alice:
A Long &Sad TailDeb Nicholson
Southeast Linuxfest6.11.2016
What Alice means for the US Patent System What Alice did not doThe global patent landscapeWhat we can do
Alice: two steps
The previous scope of patentability was even more ridiculous
Step one
Step two
No more patents for “on a computer”
or “via the internet”
Alice's impact on the US Patent System
Between July 1 and August 15, 2014,
830 patent applications were withdrawn
Software Patents: A One-Year Review of Alice v. CLS Bank, by Jasper L. Tran, 2015
Source: http://www.biotech-now.org/public-policy/patently-biotech/2014/10/patent-cases-down-by-40-in-2014
Suits being brought are down by 40%
Represents PTAB, Circuit and Federal Circuit decisions, from Software Patents: A One-Year Review of Alice v. CLS Bank, by Jasper L. Tran, 2015
“In total, 286 invalidations out of 345 patents or patent applicationsyields an average invalidation rate of 82.9% before the three courts.”
Represents PTAB, Circuit and Federal Circuit decisions, from Software Patents: A One-Year Review of Alice v. CLS Bank, by Jasper L. Tran, 2015
A few things the courts knocked out...
Digitech Image Technologies, LLC v. Electronics for Imaging, Inc.
Decided July 14, 2014
Planet Bingo, LLC v. VKGS LLC
Decided August 26, 2014
buySAFE, Inc. v. Google, Inc.
Decided September 3, 2014
Alice didn't happen in a vacuum
Mayo vs. Prometheus
Mayo vs. Prometheus
Decided March 12, 2012Decided March 12, 2012
Octane Fitness v. Icon Health
Decided April 29, 2014
Akamai vs. Limelight
Supreme Court decided July 7th, 2014
More recent cases have upheld these decisions
AllVoice Developments v. Microsoft
Decided June 11, 2015
OIP Technologies v. Amazon
Decided June 19, 2014
Ariosa Diagnostics v. Sequenom
Decided last year, but may be going to the Supreme Court this year...
Changes at the USPTO
Memos, like the one after Enfish vs. Microsoft
“...it seems that there are many examiners in the software technology space that simply do not issue patents
and seek any excuse to deny applicants.”
From Gene Quinn of Ipwatchdog.com on May 19th, 2016
Backlash in the form of webinars
Nautilus vs. Biosig
Too fast for whom?
Four out of five software patents may be invalid
What Alicedid not do
Twenty yearsof bad patents
The profitability of patent suitsfor plaintiffs
The expense of patent suitsfor defendants
Make us safe from so-called “good patents”
Eastern Texas
Plaintiffs filed 2,540 patent cases in the Eastern District in 2015
Will This Case End East Texas’ Reign as the Patent Litigation Capital?Lisa Shuchman, Corporate Counsel, January 13, 2016
Make us safe from new cases
McRo vs Namco
On the “cases to watch” list this year
Lots of legislation has been proposed,
none has passed
Fee-shifting and discovery costs
Handwringing
“Disaster survivors, and even people who just hear about a disaster, are often first
overwhelmed by it; they can only rationally process its significance after some time.”
Kevin Noonan on patentdocs.org June 22, 2015 talking about the post-Mayo Ariosa vs. Sequenom case
Inter Partes Review
MCM vs. HP
Federal Circuit said “not unconstitutional” on December 2, 2015
Cuozzo vs Lee
On January 15th, 2016, the Supreme Court agreed that they’d hear this one.
Big Pharma and Big Software
The global patent landscape
Eli Lilly vs. Canada
"An estimated 10.2 million patents were in force worldwide in 2014, with the bulk of them in the US
(24.7% of world total), Japan (18.8%) and China (11.7%)."
WIPO: http://www.wipo.int/pressroom/en/articles/2015/article_0016.html
“The number of applications to the PTO from China grew at an
average annual growth rate of 31 percent from
422 in 2000 to 10,511 in 2012.”
Made in China: How Chinese Innovation is Changing the Patent Landscape, by Jay P. Kesan, Alan Marco, and Richard Miller, 2014
European software patents
Germany just granted a patent to Image Stream
The long and the short of it
Short Term
Defensive patent pools: I work at this one and you can join for free. But we could use them in more areas, so start your
own!
License on Transfer Network
Defensive publishing
Push your workplace to embrace defense instead of offense
Long Term
Stop the Transpacific Partnership Agreement
Support the Innovation Act and the PATENT Act in the US
Keep advocating for free software!The more we collaborate,
the less we'll want to sue each other!
A One-Year Review of Alice v. CLS Bank, by Jasper L. Tran, 2015
Will This Case End East Texas’ Reign as the Patent Litigation Capital?Lisa Shuchman, Corporate Counsel, January 13, 2016
Made in China: How Chinese Innovation is Changing the Patent Landscape, by Jay P. Kesan, Alan Marco, and Richard Miller, 2014
Federal and State Legislationhttp://www.patentprogress.org/patent-progress-legislation-guides/
Further Reading
CC.BY from Flickr: Coelho em fuga, by Irene Nobrega -- Blue Sky, by Dude Pascalou -- Conejo, by Martin Garrido -- Zenith Z-19 Terminal, by ajmexico -- c's morning eggs, by Jennifer Donley -- Teens Bingo 001, by Franklin Park Library -- Chambered Nautilus Shell, by Jitze Couperus -- Money Stinky Feet
Bankroll Girls February 08, 201113, by Steven Depolo -- Finger Face, by Tsahi Levent-Levi -- Sweets, by Garry Knight -- Chicken Little, by Alias0591 --
Money on a Hook, by TaxCredits.com -- I pledge allegiance to the flag of TPP, by Donkey Hotey
CC.BY.SA from Flickr: Handshake Man and Woman, by Flazingo.com -- those are my studio phones, by Teeejayy -- got chur tail, by rashidaS MarB – Aston Martin Speedometer by Dinesh Advani on Wikipedia –
friends, by Bill Benzon -- red roses, by Maciel Lewandowski
CC.0: The Free Software Gang
Fair UseTexas Ice Rink, from Business Insider -- Alex Shrekli, from CBS News -- Canadian Flag, from Wikipedia -- Logos from Open Invention Network, Linux Defenders, Free Software Foundation, Electronic Frontier
Foundation
Public Domain: Mondrian Composition II in Red, Blue, and Yellow, by Piet Mondriaan and Washington’s Constitutional Convention 1787 from Wikipedia
By permission: “Figure 1: The Courts' Implementation of Alice from Software Patents” A One-Year Review of Alice v. CLS Bank, by Jasper L. Tran, 2015
Font: Isserley is under the SIL Open Font License
Picture Credits
