Solutions for developers given at Linuxcon Europe 2013 in Edinburgh.

1. Software Patents:
Solutions for Developers
10.22.2013
Deb Nicholson
Linuxcon Europe

2. The Big Picture

3. Patents, Products, or
Ideas?

4. “functional claiming”

5. What is currently patentable
in the US?

6. - Patentable subject matter: new
and useful, no algorithms

7. - Patentable subject matter: new
and useful, no algorithms
- Novel: you can't patent something
people are already using

8. - Patentable subject matter: new
and useful, no algorithms
- Novel: you can't patent something
people are already using
- Non-obvious: it can't be obvious
to someone in that field

9. - Patentable subject matter: new
and useful, no algorithms
- Novel: you can't patent something
people are already using
- Non-obvious: it can't be obvious
to someone in that field
- Useful: must have utility and be possible

10. Measuring
innovation

11. The US Patent Office
is granting 40,000
new software patents
each year.
(Source: A Generation of Software Patents, by James Bessen, 2011 )

12. Two Types of Threats

13. Un-spoiler alert
- Patent suits are costing us a lot of money
- Activity is increasing, not decreasing
- Lawsuits aren't spurring innovation
- Developers are fed up

14. Trolls

15. “...annual wealth lost from
NPE lawsuits was about $80
billion...”
(Bessen et al. 2011)

16. Patent suits involving “NPEs”
Source: PatentFreedom © 2013. Data captured as of January 18, 2013.

17. "...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

18. 1,300 shell
companies at
Intellectual Ventures

19. Strategic Aggressors

20. Avoiding thickets,
rewriting code and
pulling features out
is time-consuming and
un-fun for developers.

21. A headache even if
you don't get sued.

22. Suits deep at the stack level
deter innovation

23. Parallel Filing
Patents
Development

24. Thinking Globally

25. Where do you want
your code to go?

26. Certainty

27. “Harmonisation”

28. Can't you guys fix it?

29. Courts are a
black box

30. ...and expensive

31. Congress

32. ...also ain't
cheap

33. Policy change at the United
States Patent and Trade Office?

34. The USPTO could treat
software patents
differently

35. Require applicants to provide
“written descriptions” and
“definiteness”

36. Another pair of eyes

38. Increased transparency

39. Make losers pay
litigation fees

40. Let the Federal Trade
Commission go after
trolls?

41. Bad for Trolls

42. Strategic aggressors may
not be curtailed.

43. What can we as developers do?

44. Defensive
Strategies
Patent Pool
Non-Assert
Covenant
Scorched Earth
(Defensive
Filing)
Modern Software
License
Patents
Threatening
Your Software

45. Strength through
Community

46. The bad news
Patent validity is not important
●
Patents == a chilling effect on development
● Your international customers can be sued
●
Future “intellectual property” treaties
●

47. What you can do about it
Use a software license that mentions patents
● Defensive filing – Linuxdefenders.org can help
● Join a defensive patent pool
– Open Invention Network
●
Which is also a non-assertion agreement
●

48. For your reading "pleasure"
Colleen V. Chien: Reforming Software Patents
(Houston Law Review)
Tom Ewing & Robin Feldman: The Giants Among Us
(Stanford Law Review)
Dan L. Burk & Mark A. Lemley: The Patent Crisis and
How the Courts Can Solve It

49. Picture Credits
CC-BY
You Sunk My Battleship! by Derek Gavey, Ruler by Sterlic
Grinding Sausage by Rachel Tayse, Natural Bonsai by Lars
Andreas Lindstol, Feeding Turtles by Ollie Crafoord, SCOTUS
Stairs by Phil Roeder, Overview by jcbmac, Trust Fall by Vos Efx
Road by Jo@net, Bonsai Forest by Kathryn
CC-BY-SA
Lightbulb by eoin, Wet Grass by qgil
Courtesy of Simon Phipps; Sydney Opera House, Parallel Filing
and Defensive Strategies Charts
President Barack Obama; Official White House Photo by Pete
Souza
Graphs source: PatentFreedom © 2013.
Data captured as of January 18, 2013

50. Thanks!
deb@openinventionnetwork.com