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
Linuxcon Europe, Düsseldorf
October 14, 2014

2. I am not a lawyer.

3. This is not legal advice.

4. I don't get invited to secret
international treaty
negotiations.

5. The Big Picture

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

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

8. 70% percent of applications
were approved

9. Around 55% percent were
“electrical domain”

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

11. Barristers & Bottomfeeders

12. Contingent fee representation
is on the rise

14. "Even with a 40% contingent
share, we need at least $5
million in damages
to break even.”

15. Smaller firms go after
weaker defendants

17. 65% of litigated
NPE suits have
software-related claims

18. New patents are the most
litigated.

20. Litigated patents are more
likely to have changed hands

21. NPE's tend to reuse patents

22. NPE's are suing users
40% of the time

23. There is now a
post-expiration market
in the US

24. There are patent
trolls in Europe

26. Trolls are bringing
11% of UK suits

27. Judges & Juries

28. In the 90's defendants needed
to find prior art or prove that
their work was out of scope

29. Non-patentable subject matter
was responsible for 54% of
suits won by the defendant.

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

31. Indefiniteness is responsible
for 17% of defendant wins

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

33. Tunnel vision vs.
Specialization

35. Experience has
a certain effect

36. More experience with patent
suits makes judges less likely
to rule for patent-holders

38. And Attorney Generals in
New York and Vermont

39. Juries are another story...

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

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

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

44. It used to be closer to 5%

45. Globally Speaking

46. Let's take a look at patent
applications by country

47. From lens.org
US 1,843,260
Australia 160,672
European Patent Office 125,604
China 67,265
Japan 55,403

48. Patenting in China went up
32% annually from 1999-2006

49. Trolls are bringing
11% of UK suits

51. Foreign inventors are very
successful in the US courts

53. Getting sued sucks,
even if your chances of
winning are decent

54. What's working

55. No more joinder

56. Operating Company Parties in NPE Lawsuits Over Time,
courtesy of www.patentfreedom.com

57. ++Transparency

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

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

60. Open Invention Network's
mutual non-aggression pact

61. Over a thousand FLOSS
companies and projects that
don't sue each other

62. We also coordinate
defensive resources

63. Better collection
of prior art

64. Newer efforts to control the
passage of patents to NPE's

65. Homework

66. Coordinate globally

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

68. Join the Open
Invention Network

69. Keep talking to your
neighbors and colleagues

70. 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)
Startups and Patent Trolls by Colleen C. Chien
(2012)
Go to Lens.org

71. Picture 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 – Ambulance In Motion by Benjamin Ellis –
Chalk Flag by Eric Herman – Hedgehog by Sarah McManiman –
Chalkzilla by Alexander Affleck – Butterfly on Bed by Maxintosh
(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

72. dnicholson@openinventionnetwork.com