software patent litigation: what have we learned?
DESCRIPTION
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?TRANSCRIPT
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Software Patent Litigation: What have we learned?
Deb NicholsonOpen Invention Network
Linuxcon Europe, Düsseldorf October 14, 2014
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I am not a lawyer.
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This is not legal advice.
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I don't get invited to secret international treaty
negotiations.
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The Big Picture
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300,000 patents were granted in the US
in the last year
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U.S. Utility Patents Issued Over Time, courtesy of www.patentfreedom.com
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70% percent of applications were approved
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Around 55% percent were “electrical domain”
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About 50% percent of those were given to inventors
outside the US
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Barristers & Bottomfeeders
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Contingent fee representation is on the rise
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"Even with a 40% contingent share, we need at least $5
million in damages to break even.”
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Smaller firms go after weaker defendants
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65% of litigated NPE suits have
software-related claims
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New patents are the most litigated.
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Litigated patents are more likely to have changed hands
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NPE's tend to reuse patents
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NPE's are suing users 40% of the time
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There is now a post-expiration market
in the US
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There are patent trolls in Europe
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Trolls are bringing 11% of UK suits
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Judges & Juries
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In the 90's defendants needed to find prior art or prove that their work was out of scope
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Non-patentable subject matter was responsible for 54% of
suits won by the defendant.
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Alice v. CLS Bank ruling: generic computer implementation
isn't patentable
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Indefiniteness is responsible for 17% of defendant wins
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Nautilus v. Biosig ruling: vague patents aren't enforceable
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Tunnel vision vs. Specialization
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Experience has a certain effect
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More experience with patent suits makes judges less likely
to rule for patent-holders
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And Attorney Generals in New York and Vermont
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Juries are another story...
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Judges tend to rule for the patentee only half the time
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Juries rule for the patentee over two-thirds of the time
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Today over 70% of patent cases are heard by juries
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It used to be closer to 5%
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Globally Speaking
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Let's take a look at patent applications by country
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From lens.org
US 1,843,260
Australia 160,672
European Patent Office 125,604
China 67,265
Japan 55,403
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Patenting in China went up 32% annually from 1999-2006
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Trolls are bringing 11% of UK suits
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Foreign inventors are very successful in the US courts
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Getting sued sucks, even if your chances of
winning are decent
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What's working
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No more joinder
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Operating Company Parties in NPE Lawsuits Over Time,courtesy of www.patentfreedom.com
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++Transparency
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Courtesy of patentprogress.org
States Acting Against Bad Faith Patent
Infringement Assertions (as of 10/08/2014)
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Germany and New Zealand have put strict limits on
patentability
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Open Invention Network's mutual non-aggression pact
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Over a thousand FLOSS companies and projects that
don't sue each other
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We also coordinate defensive resources
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Better collection of prior art
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Newer efforts to control the passage of patents to NPE's
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Homework
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Coordinate globally
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Patent-busting siteshttp://linuxdefenders.org/https://trollingeffects.org/
http://patents.stackexchange.com/
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Join the Open Invention Network
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Keep talking to your neighbors and colleagues
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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
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Picture creditsUS 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.BYBlackboard 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.SAPurple Haze by Joey Gannon (from Flickr)
Fair UseThe Incredible Hulk and Bruce Banner both belong to Marvel, Benedict
Cumberbatch as Sherlock also doesn't belong to me
Public DomainAmerican Gothic by Grant Wood from the Google Art Project