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Software Patents: Trolls & Other Bullies
Deb Nicholson Open Invention Network LCA, January 14th, 2015
300,000 patents were granted in the US
in the last year
U.S. Utility Patents Issued Over Time, courtesy of www.patentfreedom.com
I got 99 problems but an invention ain't one
aka “Functional claiming”
“...annual wealth lost from NPE lawsuits was about $80 billion...”
(Bessen, Meurer and Ford. The Private and Social Costs of Patent Trolls 2011)
Patent suits involving “NPEs”
Source: PatentFreedom © 2013. Data captured as of January 18, 2013.
"...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
So, is this just a US problem?
From lens.org: software and software-related patent applications
US 1,843,260
Australia 160,672
European Patent Office 125,604
China 67,265
Japan 55,403
Patenting in China went up 32% annually from 1999-2006
Trolls are bringing 11% of UK suits
Source: Stefania Fusco, Markets and Patent Enforcement: A ComparativeInvestigation of Non-Practicing Entities in the United States and Europe,
20 M ICH . T ELECOMM . & T ECH . L. R EV . 439 (2014)
Foreign inventors are very successful in the US courts
The troll business model is pretty lucrative.
It's not just trolls anymore.
Practicing entities have been selling their
patents to subsidiaries
Cross-licensing “requests”
Universities produce patents and need money
Intellectual Ventures has “relationships” with
over 300 schools
Isn't there any good news?
New Zealand and Germany have put strict limits on
patentability
Congratulations!
Federal legislation is (was?) being talked about in the US
Better transparency is being required in some
jurisdictions
Courtesy of patentprogress.org
States Acting Against Bad Faith Patent
Infringement Assertions (as of 10/08/2014)
Alice v. CLS Bank ruling: generic computer implementation
isn't patentable
Nautilus v. Biosig ruling: vague patents aren't enforceable
Soverain v. Neweggthis is obvious subject matter
"It's a really tough time to be a patent owner."
Sorry not sorry!
Lower courts finally have some tools
"The Supreme Court recently reaffirmed that fundamental concepts, by themselves, are ineligible abstract
ideas. Alice Corp. v. CLS Bank"
Federal Circuit, Digitech Image v. Electronics for Imaging, Inc. June 2014
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
Getting sued still sucks, even if you win
What can we do?
Follow New Zealand's lead!
Join the Open Invention Network
Do some patent-bustinghttp://linuxdefenders.org/https://trollingeffects.org/
http://patents.stackexchange.com/
Strategic reforms for countries with a more broken democracy
Strategic reforms for countries with a more broken democracy
Complete transparency when suits are brought
Strategic reforms for countries with a more broken democracy
Complete transparency when suits are brought
Much shorter lifespans for software patents
Strategic reforms for countries with a more broken democracy
Complete transparency when suits are brought
Much shorter lifespans for software patents
Eliminate functional claiming by requiring less fuzziness in patent applications
Strategic reforms for countries with a more broken democracy
Complete transparency when suits are brought
Much shorter lifespans for software patents
Eliminate functional claiming by requiring less fuzziness in patent applications
Don't financially incentivize your patent office
For your reading “pleasure” Patent Assertion and Startup Innovation,
by Colleen V. Chien with OTI/New America Foundation,2013
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)
Does Familiarity Breed Contempt Among Judges Deciding Patent Cases?, Mark A. Lemley, Su Li, and
Jennifer M. Urban, 2013
Picture CreditsCC.0 from Blendswap
Dromaeosaur Raptor, by Animaniac888
CC.BY from FlickrMushroom and Moss, by Jason Pratt – Packhorse Bridge, by Alan
Cleaver - Bucket of Trolls, by grenade – Gold by Jeremy Schultz – Butterfly In Bed, by maxintosh – Merchant of Dreams, by Ray Ceasar -
Bridge Over Wey, by Steve Parker – Chalk Flag by Eric Herman
CC.BY.SA from FlickrBad Boss, by noii – Giraffe Huddle, by infomatique – Monkey With
Guitar, by schatz, Money by Nick Ares
CC.BY.SA:Bergen Troll, by Deb Nicholson
Fair use: Benedict Cumberbatch,American Gothic by Grant Wood, Leaving the Shire
Questions? [email protected]
