Trolls Aren't the Only Threat Under the Bridge OSCON 2014

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Recent trends in software patent litigation, how they affect free software companies and projects and what we can do about it.

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Trolls Aren't the Only Threat Under the Bridge OSCON 2014

  1. 1. Trolls Aren't The Only Threat Under the Bridge Deb Nicholson OSCON July 23rd, 2014
  2. 2. Just in case you've been hiding under a rock...
  3. 3. “...annual wealth lost from NPE lawsuits was about $80 billion...” (Bessen et al. 2011)
  4. 4. Patent suits involving “NPEs” Source: PatentFreedom © 2013. Data captured as of January 18, 2013.
  5. 5. "...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
  6. 6. Plus it turns out they're everywhere
  7. 7. And everyone finally noticed...
  8. 8. And everyone finally noticed... National Public Radio ran two spots
  9. 9. And everyone finally noticed... National Public Radio ran two spots Many academics wrote about the problem
  10. 10. And everyone finally noticed... National Public Radio ran two spots Many academics wrote about the problem The Government Accounting Office did a study
  11. 11. And everyone finally noticed... National Public Radio ran two spots Many academics wrote about the problem The Government Accounting Office did a study The Federal Trade Commission has plans
  12. 12. Legislation is being talked about
  13. 13. The Innovation Act
  14. 14. Heightened pleading
  15. 15. (a.k.a. say what you're actually suing about)
  16. 16. Fee-shifting
  17. 17. Stop “discovery abuse”
  18. 18. Better transparency
  19. 19. Limited protection for end-users
  20. 20. Review the patent at the USPTO, while litigation is on hold
  21. 21. Awesome, right?
  22. 22. Sadly, that's no longer on the table
  23. 23. What does all this mean for the future?
  24. 24. So the patent system still has HUGE problems.
  25. 25. The troll business model is pretty lucrative.
  26. 26. Practicing entities have been selling their patents to subsidiaries
  27. 27. Trolls don't have to care about FRAND
  28. 28. Anti-competitive suits
  29. 29. Cross-licensing “requests”
  30. 30. Universities produce patents and need money
  31. 31. Intellectual Ventures has “relationships” with over 300 schools
  32. 32. US Courts are becoming a bit more clueful
  33. 33. In New York, a troll was forced to return the money
  34. 34. "serious, good-faith effort"
  35. 35. Akamai v. Limelight
  36. 36. No to “contributory infringement”
  37. 37. Biosig v. Nautilus
  38. 38. There is such a thing as too much“indefiniteness”
  39. 39. Soverain v. Newegg
  40. 40. "It's a really tough time to be a patent owner."
  41. 41. Sorry not sorry!
  42. 42. Alice v. CLS Bank
  43. 43. No more magical patentability for "on a computer"
  44. 44. Digitech v. everyone they could think of
  45. 45. "The Supreme Court recently reaffirmed that fundamental concepts, by themselves, are ineligible abstract ideas. Alice Corp. v. CLS Bank"
  46. 46. Predators may not be stopped
  47. 47. What can we do?
  48. 48. Community solutions
  49. 49. Community solutions Non-aggression pact
  50. 50. Community solutions Non-aggression pact Defensive patent pool
  51. 51. Community solutions Non-aggression pact Defensive patent pool Use the GPL (and the DPL)
  52. 52. Community solutions Non-aggression pact Defensive patent pool Use the GPL (and the DPL) Lobby for software specific reforms to your local patent regime
  53. 53. Every patent system has it's own challenges
  54. 54. Strategic reforms
  55. 55. Strategic reforms Complete transparency when suits are brought
  56. 56. Strategic reforms Complete transparency when suits are brought Much shorter lifespans for software patents
  57. 57. Strategic reforms Complete transparency when suits are brought Much shorter lifespans for software patents Eliminate functional claiming by requiring less fuzziness in patent applications
  58. 58. Strategic reforms Complete transparency when suits are brought Much shorter lifespans for software patents Eliminate functional claiming by requiring less fuzziness in patent applications Don't financially incentivize the patent office
  59. 59. Individual activities
  60. 60. Individual activities Help with patent-busting
  61. 61. Individual activities Help with patent-busting Tell your lawmakers why this matters to you
  62. 62. Individual activities Help with patent-busting Tell your lawmakers why this matters to you Talk to colleagues and friends about predators
  63. 63. What we know about the general public's attention span
  64. 64. What we know about practicing entities
  65. 65. Resources Patent-busting sites http://linuxdefenders.org/ https://trollingeffects.org/ http://patents.stackexchange.com/ Reading Patent Assertion and Startup Innovation, by Colleen V. Chien with OTI/New America Foundation,2013
  66. 66. Picture Credits CC.0 from Blendswap Dromaeosaur Raptor, by Animaniac888 CC.BY from Flickr Mushroom and Moss, by Jason Pratt - Packhorse Bridge, by Alan Cleaver - Bucket of Trolls, by grenade - Butterfly In Bed, by maxintosh - Beware of Butterfly, by Valentina Powers - Bridge Over Wey, by Steve Parker CC.BY.SA from Flickr Bad Boss, by noii - Giraffe Huddle, by infomatique - Goldfish, by Steven Lilley - Lee - Monkey With Guitar, by schatz, Money by Nick Ares CC.BY.SA Bergen Troll, by Deb Nicholson
  67. 67. Questions? deb@openinventionnetwork.com

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