The United States Supreme Court's ruling in the landmark Alice vs. CLS Bank case has finally given the lower courts some tools they could use to overturn obvious and vague patents. Many judges have found for the defendant and overturned obvious patents. For entities with the time and money to fight bad patents in court, this is fantastic news. As many as four out of five of the software patents on the books in the US might be found invalid under the new doctrines. For everyone else, this is a mixed bag.

1. Software Patents
After Alice:
A Long &
Sad Tail
Deb Nicholson
Southeast Linuxfest
6.11.2016

2. What Alice means for the US Patent System
What Alice did not do
The global patent landscape
What we can do

3. Alice: two steps

4. The previous scope of
patentability was even more ridiculous

5. Step one

6. Step two

7. No more patents for
“on a computer”
or “via the internet”

8. Alice's impact on the
US Patent System

9. Between July 1 and
August 15, 2014,
830 patent applications
were withdrawn
Software Patents: A One-Year Review of Alice v. CLS Bank, by Jasper L. Tran, 2015

10. Source: http://www.biotech-now.org/public-policy/patently-biotech/2014/10/patent-
cases-down-by-40-in-2014
Suits being brought
are down by 40%

11. Represents PTAB, Circuit and Federal Circuit decisions, from Software Patents:
A One-Year Review of Alice v. CLS Bank, by Jasper L. Tran, 2015

12. “In total, 286 invalidations out of
345 patents or patent applications
yields an average invalidation rate
of 82.9% before the three
courts.”
Represents PTAB, Circuit and Federal Circuit decisions, from Software Patents:
A One-Year Review of Alice v. CLS Bank, by Jasper L. Tran, 2015

13. A few things the
courts knocked out...

14. Digitech Image Technologies, LLC v. Electronics for Imaging, Inc.
Decided July 14, 2014

15. Planet Bingo, LLC v. VKGS LLC
Decided August 26, 2014

16. buySAFE, Inc. v. Google, Inc.
Decided September 3, 2014

17. Alice didn't happen in a vacuum

18. Mayo vs. Prometheus
Mayo vs. Prometheus
Decided March 12, 2012Decided March 12, 2012

19. Octane Fitness v. Icon Health
Decided April 29, 2014

20. Akamai vs. Limelight
Supreme Court decided July 7th, 2014

21. More recent cases have
upheld these decisions

22. AllVoice Developments v. Microsoft
Decided June 11, 2015

23. OIP Technologies v. Amazon
Decided June 19, 2014

24. Ariosa Diagnostics v. Sequenom
Decided last year, but may be going to the Supreme Court this year...

25. Changes at the USPTO

26. Memos, like the one after
Enfish vs. Microsoft

27. “...it seems that there are many
examiners in the software technology
space that simply do not issue patents
and seek any excuse to deny
applicants.”
From Gene Quinn of Ipwatchdog.com on May 19th
, 2016

28. Backlash in the form
of webinars

29. Nautilus vs. Biosig

30. Too fast for whom?

31. Four out of five
software patents may be invalid

32. What Alice
did not do

33. Twenty years
of bad patents

34. The profitability of patent suits
for plaintiffs

35. The expense of patent suits
for defendants

36. Make us safe from
so-called “good patents”

37. Eastern Texas

38. Plaintiffs filed 2,540 patent cases in
the Eastern District in 2015
Will This Case End East Texas’ Reign as the Patent Litigation Capital?
Lisa Shuchman, Corporate Counsel, January 13, 2016

39. Make us safe from new cases

40. McRo vs Namco
On the “cases to watch” list this year

41. Lots of legislation
has been proposed,
none has passed

42. Fee-shifting and discovery costs

43. Handwringing

44. “Disaster survivors, and even people who just
hear about a disaster, are often first
overwhelmed by it; they can only rationally
process its significance after some time.”
Kevin Noonan on patentdocs.org June 22, 2015 talking about
the post-Mayo Ariosa vs. Sequenom case

45. Inter Partes Review

47. MCM vs. HP
Federal Circuit said “not unconstitutional” on December 2, 2015

48. Cuozzo vs Lee
On January 15th, 2016, the Supreme Court agreed that they’d hear this one.

49. Big Pharma and Big Software

50. The global patent
landscape

51. Eli Lilly vs. Canada

53. "An estimated 10.2 million patents
were in force worldwide in 2014,
with the bulk of them in the US
(24.7% of world total), Japan (18.8%)
and China (11.7%)."
WIPO: http://www.wipo.int/pressroom/en/articles/2015/article_0016.html

54. “The number of applications to
the PTO from China grew at an
average annual growth rate of 31
percent from
422 in 2000 to 10,511 in 2012.”
Made in China: How Chinese Innovation is Changing the Patent Landscape, by
Jay P. Kesan, Alan Marco, and Richard Miller, 2014

55. European software patents

56. Germany just granted a patent to
Image Stream

57. The long and
the short of it

58. Short Term

59. Defensive patent pools: I work at this one
and you can join for free. But we could
use them in more areas, so start your
own!

60. License on Transfer Network

61. Defensive publishing

62. Push your workplace to embrace
defense instead of offense

63. Long Term

64. Stop the
Transpacific
Partnership
Agreement

65. Support the Innovation Act
and the PATENT Act in the US

66. Keep advocating for free software!
The more we collaborate,
the less we'll want to sue each other!

67. A One-Year Review of Alice v. CLS Bank, by Jasper L. Tran, 2015
Will This Case End East Texas’ Reign as the Patent Litigation Capital?
Lisa Shuchman, Corporate Counsel, January 13, 2016
Made in China: How Chinese Innovation is Changing the Patent Landscape, by
Jay P. Kesan, Alan Marco, and Richard Miller, 2014
Federal and State Legislation
http://www.patentprogress.org/patent-progress-legislation-guides/
Further Reading

68. CC.BY from Flickr: Coelho em fuga, by Irene Nobrega -- Blue Sky, by Dude Pascalou -- Conejo, by Martin
Garrido -- Zenith Z-19 Terminal, by ajmexico -- c's morning eggs, by Jennifer Donley -- Teens Bingo
001, by Franklin Park Library -- Chambered Nautilus Shell, by Jitze Couperus -- Money Stinky Feet
Bankroll Girls February 08, 201113, by Steven Depolo
-- Finger Face, by Tsahi Levent-Levi -- Sweets, by Garry Knight -- Chicken Little, by Alias0591 --
Money on a Hook, by TaxCredits.com -- I pledge allegiance to the flag of TPP, by Donkey Hotey
CC.BY.SA from Flickr: Handshake Man and Woman, by Flazingo.com -- those are my studio phones, by
Teeejayy -- got chur tail, by rashidaS MarB – Aston Martin Speedometer by Dinesh Advani on Wikipedia –
friends, by Bill Benzon -- red roses, by Maciel Lewandowski
CC.0: The Free Software Gang
Fair Use
Texas Ice Rink, from Business Insider -- Alex Shrekli, from CBS News -- Canadian Flag, from Wikipedia
-- Logos from Open Invention Network, Linux Defenders, Free Software Foundation, Electronic Frontier
Foundation
Public Domain: Mondrian Composition II in Red, Blue, and Yellow, by Piet Mondriaan and Washington’s
Constitutional Convention 1787 from Wikipedia
By permission: “Figure 1: The Courts' Implementation of Alice from Software Patents” A One-Year Review
of Alice v. CLS Bank, by Jasper L. Tran, 2015
Font: Isserley is under the SIL Open Font License
Picture Credits

69. Questions?
deb@openinventionnetwork.com