Behind thecurtainyapc2013

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

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Behind thecurtainyapc2013

  1. 1. Software Patents: Who's Behind the Curtain? 6.7.2013 Deb Nicholson SELF
  2. 2. Part 1: Where do patents come from?
  3. 3. How do we measure innovation?
  4. 4. Patents, Products, or Ideas?
  5. 5. Part 2: More money, more problems
  6. 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. 7. “...annual wealth lost from NPE lawsuits was about $80 billion...” (Bessen et al. 2011)
  8. 8. Patent suits involving “NPEs” Source: PatentFreedom © 2013. Data captured as of January 18, 2013.
  9. 9. Avoiding thickets, rewriting code and pulling features out is time-consuming and un-fun for developers.
  10. 10. More recent developments - Patent aggression entities are getting bigger - Targets are getting smaller - Stack vs. special sauce
  11. 11. 1,300 shell companies at Intellectual Ventures
  12. 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. 13. Suits deep at the stack level deter innovation
  14. 14. Part 3: A solution for every pot
  15. 15. Patentability
  16. 16. - Patentable subject matter: new and useful, no algorithms
  17. 17. - Patentable subject matter: new and useful, no algorithms - Novel: you can't patent something people are already using
  18. 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. 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. 20. Here comes the judge?
  21. 21. Big solutions == big money
  22. 22. Judicial Solutions - Set precedent that better upholds the existing statute
  23. 23. Judicial Solutions - Set precedent that better upholds the existing statute - Lower the plaintiff's incentive to sue
  24. 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. 25. We oughta pass a law!
  26. 26. Congress also ain't cheap
  27. 27. Legislative Solutions - Improve the America Invents Act
  28. 28. Legislative Solutions - Improve the America Invents Act - Get rid of patents altogether, or just software patents
  29. 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. 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. 31. Doesn't the government have “people” for that?
  32. 32. Can we make the USPTO enforce the existing statute in a helpful way?
  33. 33. Policy Solutions - Require written descriptions and definiteness
  34. 34. Policy Solutions - Require written descriptions and definiteness - Allot more resources for software
  35. 35. Policy Solutions - Require written descriptions and definiteness - Allot more resources for software - Stop assuming validity
  36. 36. Policy Solutions - Require written descriptions and definiteness - Allot more resources for software - Stop assuming validity - The Federal Trade Commission could step in
  37. 37. Community (whoo!)
  38. 38. Freedom isn't free
  39. 39. Ok, actually it is free, but it requires some work
  40. 40. Community Solutions - Defensive patent pool (OIN)
  41. 41. Community Solutions - Defensive patent pool (OIN) - Identify relevant prior art
  42. 42. Community Solutions - Defensive patent pool (OIN) - Identify relevant prior art - Defensive Patent License (DPL)
  43. 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. 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. 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. 46. Thanks! deb@openinventionnetwork.com

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