Software Patents: Who's Behind the Curtain?

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Where are software patnets coming from? Why are there so many of them and what can deveopers do about it? Presented to the Bergen Linux User Group. During Q&A, I recommended Patent Absurdity as a source of more info on the infamous Texas court. That film is here, http://patentabsurdity.com/

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Software Patents: Who's Behind the Curtain?

  1. 1. Software Patents: Who's Behind the Curtain? 10.12.2013 Deb Nicholson Hello BLUG!
  2. 2. Part 1: How did we get so many patents?
  3. 3. Measuring innovation
  4. 4. Patents, Products, or Ideas?
  5. 5. Patentability 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. The US Patent Office is granting 40,000 new software patents each year. (Source: A Generation of Software Patents, by James Bessen, 2011 )
  11. 11. Parallel Filing Patents Development
  12. 12. Part 2: More money, more problems
  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. “...annual wealth lost from NPE lawsuits was about $80 billion...” (Bessen et al. 2011)
  15. 15. Patent suits involving “NPEs” Source: PatentFreedom © 2013. Data captured as of January 18, 2013.
  16. 16. Avoiding thickets, rewriting code and pulling features out is time-consuming and un-fun for developers.
  17. 17. More recent developments - Patent aggression entities are getting bigger - Targets are getting smaller - Stack vs. special sauce
  18. 18. "...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
  19. 19. Suits deep at the stack level deter innovation
  20. 20. Part 3: A Global Problem
  21. 21. 1,300 shell companies at Intellectual Ventures
  22. 22. Certainty?
  23. 23. A headache even if you don't get sued.
  24. 24. “Harmonisation”
  25. 25. Part 4: Can't you guys fix it?
  26. 26. Courts cost money
  27. 27. Congress
  28. 28. ...also ain't cheap
  29. 29. Policy change at the USPTO?
  30. 30. The USPTO could treat software patents differently
  31. 31. Part 5: What can we as developers do?
  32. 32. Defensive Strategies Patent Pool Non-Assert Covenant Scorched Earth (Defensive Filing) Open Source License Patents Threatening Your Software
  33. 33. Community!
  34. 34. The bad news Patent validity is not important ● Patents == a chilling effect on development ● Your international customers can be sued ● Your company may expand abroad ● Future “intellectual property” treaties ●
  35. 35. The good news Use a software license that mentions patents ● Defensive filing (eg. Linuxdefenders.org) ● Non-assertion covenant ● Join a defensive patent pool (eg. OIN) ●
  36. 36. 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
  37. 37. Picture Credits CC-BY Green Curtain by Prairie Kitten, Ruler by Sterlic Parchment Paper by Temari09, 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 Courtesy of Simon Phipps; Sydney Opera House, Paralell Filing and Defensive Strategies Chart Graphs source: PatentFreedom © 2013. Data captured as of January 18, 2013
  38. 38. Thanks! deb@openinventionnetwork.com

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