Software Patents:Who's Behind the Curtain?

10.12.2013
Deb Nicholson
Hello BLUG!

Part 1:How did we get so many patents?

Measuringinnovation

Patents, Products, orIdeas?

Patentability 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

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

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

Parallel Filing

Development

Patents

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

"...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

Suits deep at the stack level
deter innovation

Part 3:A Global Problem

1,300 shell companies at Intellectual Ventures

Certainty?

A headache even if
you don't get sued.

Harmonisation

Part 4:Can't you guys fix it?

Courts cost money

Congress

...also ain't cheap

Policy change at the USPTO?

The USPTO could treat software patents differently

Part 5:What can we as developers do?

Defensive Strategies

Patents Threatening Your Software

Open Source LicenseScorched Earth(Defensive Filing)Non-Assert CovenantPatent Pool

Community!

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

The bad news

Use a software license that mentions patents

Defensive filing (eg. Linuxdefenders.org)

Non-assertion covenant

Join a defensive patent pool (eg. OIN)

The good news

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-BYGreen Curtain by Prairie Kitten, Ruler by SterlicParchment 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 EfxRoad by Jo@net

CC-BY-SALightbulb 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

Thanks! deb@openinventionnetwork.com