Where are all these software patents coming from and what can we do about it?

1. Software Patents:
Who's Behind the Curtain?
6.7.2013
Deb Nicholson
SELF

2. Part 1:
Where do patents come from?

3. How do we
measure
innovation?

4. Patents, Products, or
Ideas?

5. Part 2:
More money, more problems

6. 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

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

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

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

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

11. 1,300 shell
companies at
Intellectual Ventures

12. "...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

13. Suits deep at the stack level
deter innovation

14. Part 3:
A solution for every pot

15. Patentability

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

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

18. - 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

19. - 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

20. Here comes
the judge?

21. Big solutions == big money

22. Judicial Solutions
- Set precedent that better upholds
the existing statute

23. Judicial Solutions
- Set precedent that better upholds
the existing statute
- Lower the plaintiff's incentive to sue

24. Judicial Solutions
- Set precedent that better upholds
the existing statute
- Lower the plaintiff's incentive to sue
- Set precedent that treats software
patents differently than other
patents

25. We oughta
pass a law!

26. Congress also ain't cheap

27. Legislative Solutions
- Improve the America Invents Act

28. Legislative Solutions
- Improve the America Invents Act
- Get rid of patents altogether,
or just software patents

29. 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

30. 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

31. Doesn't the government
have “people” for that?

32. Can we make the USPTO enforce the
existing statute in a helpful way?

33. Policy Solutions
- Require written descriptions
and definiteness

34. Policy Solutions
- Require written descriptions
and definiteness
- Allot more resources for software

35. Policy Solutions
- Require written descriptions
and definiteness
- Allot more resources for software
- Stop assuming validity

36. Policy Solutions
- Require written descriptions
and definiteness
- Allot more resources for software
- Stop assuming validity
- The Federal Trade Commission
could step in

37. Community
(whoo!)

38. Freedom isn't free

39. Ok, actually it is free,
but it requires some work

40. Community Solutions
- Defensive patent pool (OIN)

41. Community Solutions
- Defensive patent pool (OIN)
- Identify relevant prior art

42. Community Solutions
- Defensive patent pool (OIN)
- Identify relevant prior art
- Defensive Patent License (DPL)

43. Community Solutions
- Defensive patent pool (OIN)
- Identify relevant prior art
- Defensive Patent License (DPL)
- Continue to build awareness and
draw attention to the problem

44. 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

45. 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

46. Thanks!
deb@openinventionnetwork.com