BTLJ Holiday Patent Reform Round Up

We are now in the tail end of the season where millions of America brave wintry weather, TSA pat downs, and slow airplane wifi to spend quality time with loved ones. If gingerbread cookies and holiday shopping get old, you simply need a short break from a Top Gear marathon, or you are sick in bed with a mall-induced flu, we’ve put together a little holiday patent reform round up. This post will focus on three recent developments aimed at reforming our patent system: (1) the USPTO’s efforts ad crowd-sourcing the search for prior art, (2) heavyweight technology industry players’ newfound interest in lobbying Congress to take action on software patent reform, and (3) a recent conference at a Silicon Valley law school seeking solutions to problems surrounding software patents.

After much hand wringing regarding the state of the patent system in America, the cogs of political, academic, and legal reform are slowly turning. Just last year, Congress passed the America Invents Act (“AIA”), the first major patent reform legislation in decades. Despite certain landmark changes, such as moving from a first to invent to a first to file system for patent grants, some wonder whether the AIA alone will have a substantial effect on the recent proliferation of patent troll lawsuits.

AskPatents.com

By some accounts, the “unprecedented levels” of patent troll lawsuits directly cost $29 billion last year. Patent applications are on the rise as well, as startups and firms gear up to defend themselves against patent lawsuits, and as they take advantage of the rising tide of litigation. A common refrain, particularly from software engineers in the trenches developing new algorithms and computational solutions, is that many of the USPTO’s patent grants overlook prior art. This refrain, however, no longer falls on deaf ears.

Under one of the AIA’s new provisions, 35 U.S.C. 122(e), members of the public can now submit prior art to patent examiners to aid their determination of whether a particular innovation in an application is patentable. To help facilitate this unique provision—which allows the public to have a meaningful role in patent prosecution—the USPTO partnered with a leading user-generated content startup. StackExchange is a “fast-growing network of question and answer sites on diverse topics from software programming to cooking[.]”  Adding to its 92 Q&A sites is AskPatents.com, where members of the public can act upon the newfound power to submit prior art granted by the AIA.

On AskPatents, anybody can post questions about patent applications, and people can respond with prior art right on the website. StackExchange’s robust platform for threading Q&A’s allows for comments, tagging, and highly effective searching, making the process a breeze. As with other StackExchange sites, AskPatents is completely free to use. Beyond specific questions searching for prior art, like “Prior art for Dual Air Drying Arrangement,”  the Q&A site also contains general questions to help educate the public about patents. One thread, for example, asks about the difference between a provisional and non-provisional patent application. Another, viewed over 200 times in less than 24 hours, asks if a patent can be refilled after a period of 20 years.

While it is still likely too early to tell if AskPatents will be a success, if past StackExchanges are any indication, it has the potential to be of significant importance. Just a few short months after launch, AskPatents seems to be thriving with multiple posts per day and dozens of views per thread. Hopefully the robust software development community that has already embraced StackExchange will assist the USPTO in searching for prior art. Moreover, the platform’s excellent “related topics” feature makes for near-endless reading—perfect for killing time during the holidays.

SHIELD Act

Startups and technology players are doing more than just collaborating with the executive branch on implementation of intellectual property legislation. Some companies, anxious to enact further reform limiting the proliferation of software patent lawsuits, are lobbying for further legislative reform as well. The SHIELD Act is at the vanguard of current lobbying efforts. Rackspace, an industry leader in cloud hosting, wants patent trolls to pay. Introduced in Congress by a bipartisan duo of representatives from Oregon  and Utah, the SHIELD act would require non-practicing entities (NPEs; also known as patent trolls) to pay legal fees for their targets should the defendants prevail in litigation.

Ideally, such a fee shifting provision would discourage trolls from filing patent infringement suits as well as help defendants recoup losses from lengthy litigation. However, lively debate on HackerNews, a message board frequented by software developers and entrepreneurs, shows some of the limitations of the SHIELD’s act methods. For some well funded trolls or NPE’s, the prospect of paying attorney’s fees may not discourage filing suit. Further, there are concerns that separate legal entities created specifically for litigating individual patents could simply declare bankruptcy, limiting the SHIELD Act’s effectiveness.

Ultimately, the SHIELD act will have a tough time garnering the attention of a congress enthralled in a battle over the fiscal cliff and faced with a packed agenda in Obama’s second term. Furthermore, even with the support of lobbying heavyweights such as the Consumer Electronics Association or popular startups like Rackspace, it will be difficult to convince congress to revisit the issue of intellectual property reform. Much political capital was expended in the debates over the AIA, and legislators likely will want to adopt a wait-and-see approach on the reforms before enacting further legislation. Echoing this concern, David Kappos, Director of the Patent and Trademark Office, recently argued that patent litigation is nothing to be alarmed about, and that critics should give the AIA some time to have its intended effect.

Santa Clara Patent Conference

Due to the difficulty of a crowd-sourced or legislative fix and continued distress over the state of software patents, academics and domain experts gathered at Santa Clara Law School in November to discuss a wide array of solutions. While other conferences have focused on describing, or even debating, whether a problem exists in the current state of software patents and NPE lawsuits, Santa Clara’s most recent conference began with the presumption that the current system is problematic, thus focusing on solutions. A video feed of the entire conference, running over 8 hours in length, is perfect for a break from turkey legs and gingerbread.

The keynote presentation at the conference, titled “Defense 2.0: New Strategies for Reducing Patent Risk,” was given by Richard Stallman. Stallman, famous as the godfather of the free software movement, wished not to livestream his presentation due to the requirement of the proprietary Silverlight codec. However, sound is still available in the recorded presentation. Stallman took the boldest, and perhaps most refreshing, stance in the conference by drawing a clear line: software should not be patentable. Wishing to change the discourse surrounding software patents, he argued that we should refer to such patents as “computational idea patents” rather than software patents. The reason why, according to Stallman, is that most people think software patents are about computer programs, when in reality they govern particular computational methods. His argument against such patents was that they put both software developers and users in danger by monopolizing forms of computations.

Using an analogy to classical music, Stallman claimed that even the great Beethoven wouldn’t be able to write a symphony under today’s patent system in America. Like software, a symphony is the implementation of many different musical ideas together. Stallman explained that the tough part is not in the picking of the musical ideas, but rather in their implementation.

Finally, Stallman left the audience with a sobering point on methodology. It’s a mistake to focus on piecemeal, rather than comprehensive, reforms. According to the free software visionary, partial solutions would be vulnerable to the natural tendency of the patent system to stretch its own boundaries. Further, piecemeal reforms would only protect some software developers, thus garnering less support from the wider developer community. Ultimately, Stallman concluded, only radical reform can hope to solve the problem. In the face of many of the other presenter’s pragmatic and step-by-step patent reforms, Stallman dared the audience to dream big.

Following Stallman’s keynote, a slew of presenters proposed a variety of solutions to the patent troll problem, ranging from increased maintenance fees, to shorter patent terms, to novel legislative solutions such as a resolution stating congress’s view on software patents aimed at guiding future judicial interpretations of the law. Staying true to the high-technology subject and setting at the conference, attendees electronically voted for their favorite solutions and proposed reforms.

I thoroughly enjoyed listening to the conference, and would recommend the full experience to anybody wishing to pause from holiday cooking specials on the television in favor of listening to committed and bright minds discussing how to reform our patent system. The presenters’ viewpoints will be further available in a series of op-eds in Wired magazine, many of which are already available.

 

With the conference at Santa Clara, public participation in finding prior art and learning about the patent process on AskPatents, and continued legislative scrutiny of our patent system via the SHIELD Act, perhaps critics of software patents and troll proliferation will receive more than a lump of coal this holiday season. If nothing else, the plethora of activity surrounding patent reform gives us all much to catch up on and digest.

 

 

Cite as: Michael Burshteyn, BTLJ Holiday Patent Reform Round Up, Berkeley Tech. L.J. Bolt (December 28, 2012), http://btlj.org/?p=2176.
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