Software Patents:Solutions for Developers

10.22.2013
Deb Nicholson
Linuxcon Europe

The Big Picture

Patents, Products, orIdeas?

functional claiming

What is currently patentable
in the US?

- 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

Measuringinnovation

The US Patent Office is granting 40,000 new software patents each year.

(Source: A Generation of Software Patents, by James Bessen, 2011 )

Two Types of Threats

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

Trolls

...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.

"...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

1,300 shell companies at Intellectual Ventures

Strategic Aggressors

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

A headache even if
you don't get sued.

Suits deep at the stack level
deter innovation

Parallel Filing

Development

Patents

Thinking Globally

Where do you want
your code to go?

Certainty

Harmonisation

Can't you guys fix it?

Courts are a black box

...and expensive

Congress

...also ain't cheap

Policy change at the United States Patent and Trade Office?

The USPTO could treat software patents differently

Require applicants to provide written descriptions and definiteness

Another pair of eyes

Increased transparency

Make losers pay litigation fees

Let the Federal Trade Commission go after trolls?

Bad for Trolls

Strategic aggressors may not be curtailed.

What can we as developers do?

Defensive Strategies

Patents Threatening Your Software

Modern Software LicenseScorched Earth(Defensive Filing)Non-Assert CovenantPatent Pool

Strength through Community

Patent validity is not important

Patents == a chilling effect on development

Your international customers can be sued

Future intellectual property treaties

The bad news

Use a software license that mentions patents

Defensive filing Linuxdefenders.org can help

Join a defensive patent pool Open Invention Network

Which is also a non-assertion agreement

What you can do about it

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-BYYou Sunk My Battleship! by Derek Gavey, Ruler by SterlicGrinding Sausage by Rachel Tayse, Natural Bonsai by Lars Andreas Lindstol, Feeding Turtles by Ollie Crafoord, SCOTUS Stairs by Phil Roeder, Overview by jcbmac, Trust Fall by Vos EfxRoad by Jo@net, Bonsai Forest by Kathryn

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

Courtesy of Simon Phipps; Sydney Opera House, Parallel Filing and Defensive Strategies Charts

President Barack Obama; Official White House Photo by Pete Souza

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

Thanks! deb@openinventionnetwork.com