The huge increase in software patent litigation over the last 15 years has produced reams of articles, cost fortunes and even snagged the US President's attention. But when something goes on for long enough, it also produces data -- lots of data. So what have we learned?

1. Software Patent Litigation:
What have we learned?
Deb Nicholson
Open Invention Network
FOSDEM
January 31, 2015

2. I am not a lawyer.

4. Not invited to secret
international treaty meetings.

5. Big Picture

6. 300,000 patents were
granted in the US
in the last year

7. 99 problems,
but an invention ain't one

8. U.S. Utility Patents Issued Over Time,
courtesy of www.patentfreedom.com

9. About 50% percent of those
were given to inventors
outside the US

10. Global Trends

11. Software Patents Issued To Date
US: 799,050
Australia: 53,278
European Patent
Office: 108,977
China: 9,860
Korea: 2,362
Canada: 2,109
Japan: 1,993
Great Britain: 672
Germany: 606
From lens.org, on Jan. 30th
, 2015

12. Source: Stefania Fusco, Markets and Patent Enforcement: A Comparative
Investigation of Non-Practicing Entities in the United States and Europe,
20 M ICH . T ELECOMM . & T ECH . L. R EV . 439 (2014)
Trolls are bringing
11% of UK suits

14. Foreign inventors are very
successful in the US courts

16. Even if you win,
getting sued sucks

17. Barristers & Bottomfeeders

18. Contingent fee representation
is on the rise

20. “Even with a 40% contingent
share, we need at least $5
million in damages
to break even.”
The Rise of Contingent Fee Legislation, David L. Schwarz (2012)

21. The economy even
affects lawyers

22. Many firms go after weaker
defendants first

23. Smaller firms go with
quantity over quality

25. Judges & Juries

26. "Understanding the realities of Modern Patent Litigation" (2014 : Allison,
Lemley & Schwartz)
In the 90's defendants needed
to find prior art or prove that
their work was out of scope

27. Data from 2008 and 2009, Alison, Lemley & Schwartz (2014)
54% of suits won
by the defendant via
non-patentable subject matter

28. Alice v. CLS Bank ruling:
generic computer implementation
isn't patentable

29. "The Supreme Court recently reaffirmed
that fundamental concepts, by
themselves, are ineligible
abstract ideas."
Federal Circuit, Digitech Image v. Electronics for Imaging, Inc. June 2014

30. 17% of defendant wins
are via indefiniteness
Data from 2008 and 2009, Alison, Lemley & Schwartz (2014)

31. Nautilus v. Biosig ruling:
vague patents aren't enforceable

32. Tunnel Vision vs.
Specialization

34. More experience with patent
suits makes judges less likely
to rule for patent-holders
Does Familiarity Breed Contempt Among Judges Deciding Patent Cases?,
Mark A. Lemley, Su Li, and Jennifer M. Urban, 2013

36. Juries are another story...

38. Judges tend to rule for the
patentee only half the time

39. Juries rule for the patentee
over two-thirds of the time

40. Today over 70% of patent
cases are heard by juries

41. It used to be closer to 5%

42. What's working

43. Germany and New Zealand
have put strict limits on
patentability

44. Sometimes democracy
works!

45. Courtesy of patentprogress.org
States Acting Against Bad Faith Patent
Infringement Assertions (as of 10/08/2014)

46. The Open
Invention Network

47. Homework

48. Patent-busting sites
http://linuxdefenders.org/
https://trollingeffects.org/
http://patents.stackexchange.com/

49. Defensive publications

50. Pass laws if you can

52. Further reading
Markets and Patent Enforcement: A Comparative
Investigation of Non-Practicing Entities in the United
States and Europe by Stefania Fusco (2014)
Understanding the Realities of Modern Patent Litigation
by Allison, Lemley and Schwartz (2014)
The Rise of Contingent Fee Representation in Patent
Litigation by David L. Schwartz (2012)
Does Familiarity Breed Contempt Among Judges
Deciding Patent Cases?, Mark A. Lemley, Su Li, and
Jennifer M. Urban, 2013
Tons of stuff at Lens.org

53. Picture and Font Credits
US Transparency Legislation, courtesy of www.patentprogress.com
U.S. Utility Patents Issued Over Time
& Operating Company Parties in NPE Lawsuits Over Time,
courtesy of www.patentfreedom.com
CC.BY
Blackboard by J. Neuber – Butterfly on Bed by Maxintosh – Ambulance In
Motion by Benjamin Ellis – Chalk Flag by Eric Herman – Emptied Piggy Bank
by Eden, Janine and Jim – Chalk Maze by Eli Christman – Chalkzilla by
Alexander Affleck
(all from Flickr)
CC.BY.SA
Purple Haze by Joey Gannon (from Flickr)
Fair Use
The Incredible Hulk and Bruce Banner both belong to Marvel, Benedict
Cumberbatch as Sherlock also doesn't belong to me
Public Domain
American Gothic by Grant Wood from the Google Art Project
Fonts: Anke (OFL) & Sorts Mill Goudy (MIT)

54. dnicholson@openinventionnetwork.com