PESC 2007: Open Source, Learning, and Patents

  • 2,071 views
Uploaded on

 

More in: Technology
  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Be the first to comment
    Be the first to like this
No Downloads

Views

Total Views
2,071
On Slideshare
0
From Embeds
0
Number of Embeds
0

Actions

Shares
Downloads
66
Comments
0
Likes
0

Embeds 0

No embeds

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
    No notes for slide

Transcript

  • 1. Open Source, Learning, and Patents Michael Feldstein April 23, 2007
  • 2. Author’s Note: Adapting to the audience, the sequence of slides presented was changed during presentation. This presentation is in the sequence given. A recording of the presentation is available and can be reached at ___ (Audio MP3 01:00:00 xxmb).
  • 3. About me
  • 4. Who I am not
    • A lawyer
    • An intellectual property expert
    • Knowledgeable about patents outside of the U.S.
    • A journalist
    • A spokesperson for my employer
  • 5. Who I am
    • An interested party
      • A lifelong educator
      • Involved in educational software for 11 years
    • A partisan
      • One of the early reporters of the Blackboard patent and lawsuit
      • Started the Wikipedia page on prior art
      • Translated the Blackboard patent claims into plain English
  • 6. Some wake-up calls
    • Blackboard v Desire2Learn
    • Firestar Software v RedHat
    • Jacobsen v Katzer
    • Washington Research Foundation v. Matsushita et al
    • Alcatel-Lucent v Microsoft
  • 7. Basics about patents
  • 8. Patent vs Copyright
    • A patent is a temporary monopoly on an idea (or “invention”)
    • A copyright is a temporary monopoly on the expression of an idea
  • 9. Reasons for patents
    • To provide incentive for innovation in the fields of “science and the useful arts”
    • To provide incentive for sharing of that innovation, to the public good
  • 10. The issues
  • 11. Pros and cons Source: http://en.wikipedia.org/wiki/Software_patent_debate (2 March 2007, 14:43) Benefits Costs Innovation
    • Creates an incentive for research and new process/product development
    • Encourages disclosure of inventions
    • Impedes combination of new ideas and inventions
    • Provides an opportunity for rent-seeking
    Competition
    • Facilitates the entry of new (small) firms with a limited asset base or difficulties in obtaining finance
    • Creates short-term monopolies, which may become long-term in network industries, where standards are important
    Transaction Costs
    • Creates a neatly packaged negotiable IP right
    • Creates patent risk uncertainty and/or search costs
    • Creates economic friction
    • Raises transaction costs for follow-on development
  • 12. The software patent challenge
    • Tricky: Algorithms are not patentable, but devices that use them are
    • Controversial: Inventions are often additive
    Source: http://en.wikipedia.org/wiki/Image:Software_patents2.JPG#file (30 April, 2006, 00:32)
  • 13. EduPatents as special cases
  • 14. The economics of Bb v D2L
    • Estimated litigation costs to Desire2Learn: $1.5 million - $3 million
    • Additional cost for inter partes challenge at USPTO
    • Desire2Learn’s estimated annual revenues: $10 million
    • Desire2Learn’s estimated annual profits: 5%, or $500,000
    • Conclusion: The patent litigation will cost Desire2Learn 100% of their profits for 3-6 years or longer .
  • 15. And what if they lose?
    • They pay all litigation costs
    • Plus USPTO challenge costs
    • Plus the royalty
    • Plus treble damages for willful infringement (some calculate ~$800K/new customer from suit to settlement)
    • Plus Blackboard’s legal fees
  • 16. The positions
  • 17. Views about software patents
    • Good (and good for you)
    • Generally good, but patent quality is a problem
    • Bad, but we’ve learned to live with them
    • Evil, bad, and yucky
  • 18. Views about EduPatents
    • They protect innovation
    • Good, but particularly vulnerable to patent quality problems
    • Open Source should be protected
    • Open Source and its support vendors should be protected
    • Do more harm than good
  • 19. Hierarchy of EduPatent Needs This section drawn in part from Jim Farmer, “eLearning Patents: An Institutional Perspective,” SUNY Wizard conference, November 8, 2006
  • 20. Safety for users
    • License from a firm that has a patent indemnity clause
    • Use Open Source software that has obtained an opinion of non-infringement or licensing agreements
    • Encourage patent holders to provide guarantees not to sue
  • 21. Safety for Open Source contributors
    • Contribute to a legal entity; retain a non-exclusive right to use and distribute
    • Execute a contribution agreement
    • Maintain records (including copies of contributions)
    • Publish your records
    • Maintain hard copies if possible
  • 22. Safety for software projects (especially Open Source)
    • Provide opinion of non-infringement or design around patents that are being asserted
    • Publish documentation of design processes, and contributions
    • Reveal all sources of code
    • Work with patent holders and community to establish ground rules and “treaties”
    • When necessary, license patents
  • 23. Safety for innovators
    • Engage with the community regarding quality of patent applications
    • Think carefully about trade-offs around patent assertion
    • Consider non-assertion promises or royalty-free licenses for relevant communities
    • Consider defensive patents or publication as alternative strategies
  • 24. The future
  • 25. What to expect
    • More assertion of software patents
    • More liquidity in the patent market
    • Some patent reform, particularly around patent quality
    • The rise of patent indemnification and insurance as a line of business
  • 26. Developments to watch
    • Blackboard v Desire2Learn
    • The Blackboard patent pledge and similar efforts
    • KSR v Teleflex
    • Microsoft v AT&T
    • Patent reform legislation in House and Senate
    • USPTO patent application peer review pilot
  • 27. Questions?
    • Michael Feldstein
    • http://mfeldstein.com/
    • [email_address]
    • For EduPatent Alerts:
    • http://mfeldstein.com/edupatents/