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Trolls Aren't The Only Threat Under the Bridge Deb Nicholson OSCON July 23rd, 2014

Trolls Aren't the Only Threat Under the Bridge OSCON 2014

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Recent trends in software patent litigation, how they affect free software companies and projects and what we can do about it.

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Page 1: Trolls Aren't the Only Threat Under the Bridge OSCON 2014

Trolls Aren't The Only Threat Under the Bridge

Deb Nicholson OSCON

July 23rd, 2014

Page 2: Trolls Aren't the Only Threat Under the Bridge OSCON 2014
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Just in case you've been hiding under a rock...

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“...annual wealth lost from NPE lawsuits was about $80

billion...”

(Bessen et al. 2011)

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Patent suits involving “NPEs”

Source: PatentFreedom © 2013. Data captured as of January 18, 2013.

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"...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

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Plus it turns out they're everywhere

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And everyone finally noticed...

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And everyone finally noticed...

National Public Radio ran two spots

Page 12: Trolls Aren't the Only Threat Under the Bridge OSCON 2014

And everyone finally noticed...

National Public Radio ran two spots

Many academics wrote about the problem

Page 13: Trolls Aren't the Only Threat Under the Bridge OSCON 2014

And everyone finally noticed...

National Public Radio ran two spots

Many academics wrote about the problem

The Government Accounting Office did a study

Page 14: Trolls Aren't the Only Threat Under the Bridge OSCON 2014

And everyone finally noticed...

National Public Radio ran two spots

Many academics wrote about the problem

The Government Accounting Office did a study

The Federal Trade Commission has plans

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Legislation is being talked about

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The Innovation Act

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Heightened pleading

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(a.k.a. say what you're actually suing about)

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Fee-shifting

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Stop “discovery abuse”

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Better transparency

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Limited protection for end-users

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Review the patent at the USPTO,

while litigation is on hold

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Awesome, right?

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Sadly, that's no longer on the table

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What does all this mean for the future?

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So the patent system still has HUGE problems.

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The troll business model is pretty lucrative.

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Practicing entities have been selling their

patents to subsidiaries

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Trolls don't have to care about FRAND

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Anti-competitive suits

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Cross-licensing “requests”

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Universities produce patents and need money

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Intellectual Ventures has “relationships” with

over 300 schools

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US Courts are becoming a bit more clueful

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In New York, a troll was forced to return the money

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"serious, good-faith effort"

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Akamai v. Limelight

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No to “contributory infringement”

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Biosig v. Nautilus

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There is such a thing as too much“indefiniteness”

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Soverain v. Newegg

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"It's a really tough time to be a patent owner."

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Sorry not sorry!

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Alice v. CLS Bank

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No more magical patentability for "on a computer"

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Digitech v. everyone they could think of

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"The Supreme Court recently reaffirmed that fundamental concepts, by themselves, are ineligible abstract

ideas. Alice Corp. v. CLS Bank"

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Predators may not be stopped

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What can we do?

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Community solutions

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Community solutions

Non-aggression pact

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Community solutions

Non-aggression pact

Defensive patent pool

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Community solutions

Non-aggression pact

Defensive patent pool

Use the GPL (and the DPL)

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Community solutions

Non-aggression pact

Defensive patent pool

Use the GPL (and the DPL)

Lobby for software specific reforms to your local patent regime

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Every patent system has it's own challenges

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Strategic reforms

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Strategic reforms

Complete transparency when suits are brought

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Strategic reforms

Complete transparency when suits are brought

Much shorter lifespans for software patents

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Strategic reforms

Complete transparency when suits are brought

Much shorter lifespans for software patents

Eliminate functional claiming by requiring less fuzziness in patent applications

Page 68: Trolls Aren't the Only Threat Under the Bridge OSCON 2014

Strategic reforms

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 the patent office

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Individual activities

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Individual activities

Help with patent-busting

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Individual activities

Help with patent-busting

Tell your lawmakers why this matters to you

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Individual activities

Help with patent-busting

Tell your lawmakers why this matters to you

Talk to colleagues and friends about predators

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What we know about the general public's

attention span

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What we know about practicing entities

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Resources

Patent-busting siteshttp://linuxdefenders.org/https://trollingeffects.org/

http://patents.stackexchange.com/

ReadingPatent Assertion and Startup Innovation,

by Colleen V. Chien with OTI/New America Foundation,2013

Page 76: Trolls Aren't the Only Threat Under the Bridge OSCON 2014

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 - Butterfly In

Bed, by maxintosh - Beware of Butterfly, by Valentina Powers - Bridge Over Wey, by Steve Parker

CC.BY.SA from FlickrBad Boss, by noii - Giraffe Huddle, by infomatique -

Goldfish, by Steven Lilley - Lee - Monkey With Guitar, by schatz, Money by Nick Ares

CC.BY.SA Bergen Troll, by Deb Nicholson

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Questions? [email protected]

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