1. Software Patents:
Who's Behind the Curtain?
SCALE
2.23.2013
Deb Nicholson

2. Part 1:
Where do patents come from?

3. How do we
measure
innovation?

4. Patents, Products, or
Ideas?

5. The 10 cent patent history lesson

9. Part 2:
More money, more problems

10. 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

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

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

13. The number of patent
actions filed reached 4,015 in
2011.
(PwC 2012 Patent Litigation Study)

14. Utility patents granted each year
Source: PatentFreedom © 2013. Data captured as of January 18, 2013.

15. “spurring innovation”

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. 1,300 shell
companies at
Intellectual Ventures

19. "...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

20. Part 3:
A solution for every pot

21. The current standard for
patentability

22. The current standard for
patentability
- Patentable subject matter: new
and useful, no algorithms

23. The current standard for
patentability
- Patentable subject matter: new
and useful, no algorithms
- Novel: you can't patent something
people are already using

24. The current standard for
patentability
- 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

25. The current standard for
patentability
- 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

26. Here comes
the judge?

27. Big solutions == big money

28. Judicial Solutions
- Lower the plaintiff's incentive to sue

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

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

31. We oughta
pass a law!

32. Congress also ain't cheap

33. Legislative Solutions
- Improve the America Invents Act

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

35. 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

36. 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

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

38. Policy Solutions
Basically, how can the USPTO enforce
the existing statute in a helpful way?

39. Policy Solutions
- Require written descriptions
and definiteness

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

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

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

43. Community
(whoo!)

44. Freedom isn't free

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

46. Community Solutions
- Defensive patent pool (OIN)

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

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

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

50. 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

51. 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

52. 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

53. Thanks!
deb@openinventionnetwork.com