Software Patents: Solutions for Developers

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Solutions for developers given at Linuxcon Europe 2013 in Edinburgh.

Solutions for developers given at Linuxcon Europe 2013 in Edinburgh.

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  • 1. Software Patents: Solutions for Developers 10.22.2013 Deb Nicholson Linuxcon Europe
  • 2. The Big Picture
  • 3. Patents, Products, or Ideas?
  • 4. “functional claiming”
  • 5. What is currently patentable in the US?
  • 6. - Patentable subject matter: new and useful, no algorithms
  • 7. - Patentable subject matter: new and useful, no algorithms - Novel: you can't patent something people are already using
  • 8. - 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
  • 9. - 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
  • 10. Measuring innovation
  • 11. The US Patent Office is granting 40,000 new software patents each year. (Source: A Generation of Software Patents, by James Bessen, 2011 )
  • 12. Two Types of Threats
  • 13. 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
  • 14. Trolls
  • 15. “...annual wealth lost from NPE lawsuits was about $80 billion...” (Bessen et al. 2011)
  • 16. Patent suits involving “NPEs” Source: PatentFreedom © 2013. Data captured as of January 18, 2013.
  • 17. "...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
  • 18. 1,300 shell companies at Intellectual Ventures
  • 19. Strategic Aggressors
  • 20. Avoiding thickets, rewriting code and pulling features out is time-consuming and un-fun for developers.
  • 21. A headache even if you don't get sued.
  • 22. Suits deep at the stack level deter innovation
  • 23. Parallel Filing Patents Development
  • 24. Thinking Globally
  • 25. Where do you want your code to go?
  • 26. Certainty
  • 27. “Harmonisation”
  • 28. Can't you guys fix it?
  • 29. Courts are a black box
  • 30. ...and expensive
  • 31. Congress
  • 32. ...also ain't cheap
  • 33. Policy change at the United States Patent and Trade Office?
  • 34. The USPTO could treat software patents differently
  • 35. Require applicants to provide “written descriptions” and “definiteness”
  • 36. Another pair of eyes
  • 37. Increased transparency
  • 38. Make losers pay litigation fees
  • 39. Let the Federal Trade Commission go after trolls?
  • 40. Bad for Trolls
  • 41. Strategic aggressors may not be curtailed.
  • 42. What can we as developers do?
  • 43. Defensive Strategies Patent Pool Non-Assert Covenant Scorched Earth (Defensive Filing) Modern Software License Patents Threatening Your Software
  • 44. Strength through Community
  • 45. The bad news Patent validity is not important ● Patents == a chilling effect on development ● Your international customers can be sued ● Future “intellectual property” treaties ●
  • 46. What you can do about it 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 ●
  • 47. 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
  • 48. Picture Credits CC-BY You Sunk My Battleship! by Derek Gavey, Ruler by Sterlic Grinding 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 Efx Road by Jo@net, Bonsai Forest by Kathryn CC-BY-SA Lightbulb 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
  • 49. Thanks! deb@openinventionnetwork.com