Software Patents: Solutions for Developers

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Solutions for developers given at Linuxcon Europe 2013 in Edinburgh.

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Software Patents: Solutions for Developers

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

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