Software Patents After Alice: A Long and Sad Tail – Deb Nicholson

Since the Alice decision of the US Supreme Court, there is some clarity about what is patentable and what is not in the US. The Alice decision specified that an invention is not patentable if it is abstract (i.e. an algorithm, an idea, …), or if it is an existing idea with a simple novel engineering implementation (e.g. … over the Internet or … on a computer, or combining two mundane practices).

Since then, about 900 software patents have been withdrawn and there are about 40% less software patent suits. There are a lot of ridiculous cases that previously still stood a chance in court, but that now are simply overturned.

There have also been changes at the PTO: they are now taking into account these rules during patent examination. But it doesn’t sound like they’re too serious about it. Lawyers (who see their profits from trolling disappearing) are switching to “increasing patent quality”. There is also a chance that the Supreme Court is going to consider that they went too far too fast, and will reduce the impact in later rulings.

There are still twenty years of bad patents active. They are not automatically overturned, they can only be overturned in courts. So there is still plenty of opportunity for trolling, they just can’t ask too high damages. Getting sued is expensive, because you can recover court costs and attorney fees, but not other costs like discovery. Courts in Eastern Texas ask for the defender to do discovery before even looking at the case, so it gets expensive. Also it’s not guaranteed that the plaintiff will have to pay the defendant’s attorney fees.

There are also still plenty of patents that are still valid after Alice.

Eastern Texas still exists after Alice.

There could still be other cases tried by the Supreme Court that weakens Alice. There could also be new legislation, although some positive things have been proposed, like more transparency and more fee-shifting (including discovery costs).

Another good thing that is going on in parallel with Alice is that anybody can go to the PTO and ask for a patent to be re-examined (= Inter Partes review). But big pharma and big software are afraid of this, because it could destroy their patents as well.

There is also an international context, because of things like NAFTA, TPP, TTIP. Cfr. Eli Lily vs Canada, where the company sues the country because a court in Canada has declared a patent invalid.  They claim the Canadese patent system is weak.

25% of the 10 million patents in force at the moment are US patents, but China is not that much less. The number of patent applications coming from China is steadily increasing. In 2015, the Chinese patent office has granted more patents than the US patent office.

So what can we do? The OIN pools existing patents which gives you some defense. You can do defensive publishing. There is also the twitter pledge [I didn’t understand what that is]. And of course, stop TPP and TTIP.


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