Tim: So Deb, you work for the Open Invention Network, what is that?
Deborah Nicholson: So, we run a defensive patent pool for Linux and GNU and Android and a lot of related development tools and it’s basically – everyone agrees to not sue each other on the free software tools in there and anyone can cross license things there and use them defensively if they need to, but of course they’re not for aggression.
Tim: Well, what is your role with the OIN?
Deborah Nicholson: So, I’m a Director of Community Outreach and that means that I go and talk to developers and projects about what they’re doing and what they could be doing about patents.
Tim: What is the trend like when it comes to the actual filing of software patents?
Deborah Nicholson: So it’s what we call exponential, we are at about 40,000 software patents being granted each year which is a lot considering that just about 10 years ago, it was about 10,000 patents and even in 1990, it was just 5,000 software patents a year, so it’s a very scary kind off-the-chart number.
Tim: Now related to that, what about the trend when it comes to lawsuits that happened based on software patents?
Deborah Nicholson: Right. So with more patents, you see more patent suits which is unsurprising. We see more patent suits, especially in the area around software and particularly the well known area with non-practicing entities or patent aggression entities.
Tim: So speaking of those, these non-practicing entities, do they hold most of the patents that we see lawsuits about or are most of them held by companies, the syndicates or the legitimately invented, at least the software, if not the idea?
Deborah Nicholson: Right. So, they’re bringing I think more suits, but I don’t know that they’re holding more patents. Many of them tend to be very cagey about their holdings, famously Intellectual Ventures, there have been folks trying to figure out exactly how many patents they hold and the best they were able to come up with was a range and it was a large number, but it was still just a range, so we don’t actually know.
Tim: So companies like Intellectual Ventures sometimes are called patent controls, are there some patents that are either more egregious or on the other hand more defensible than others?
Deborah Nicholson: Well, software lends itself to suits because there’s a problem of notice, nearly everybody operating in the field of software is infringing on a patent because so many of them are written so broadly and it’s possible to figure out and like you would in a physical space when you’ve crossed into somebody else’s property and so that makes it very much sort of the court’s opinion as to who is infringing once you get to the court. And that works out really well for the frequent litigator. They know how the courts work. They know how lawsuits work. They know where to find the precedences and so the courts tend to favor the frequent litigator.
Tim: Now in the world of software patents, a lot of things that seem kind of crazy seem to have made it past the US PTO, how does that happen?
Deborah Nicholson: Well, the US PTO is, I guess, maybe liken it to the post office, underfunded, over-worked and so there’s that problem. I think another problem is that they don’t have a great organization of where to look for software patents. In more traditional engineering fields, you would just apply to receive journals in your field and you would go to maybe a conference or two a year, on like very tightly controlled physical engineering field. So for software, there is no obvious couple of academic journals to subscribe to, it’s the huge volume of material ____4:00 and most of it undocumented as far as like exactly what it does. It just makes it really infeasible for them to figure out like what the actual state-of-the-art is.
Tim: It will be hard for them to get enough people who are conversant with Perl conference right now, enough people who are conversant in Perl which is sometimes written intentionally
Deborah Nicholson: Yeah, well, that’s a different issue, assuming that we want them to understand what we’re doing. But yes, and then even then, even if you found out that this was actually a new Perl thing, you would need to find someone conversant in all of the other programming languages to make sure that the same function isn’t being fulfilled with a program that’s written in another language.
Tim: And when it comes to that so many crazy things get through or at least crazy from a non-patent attorney’s viewpoint, what is the misconceptions that people have about patentability and about what things get patented?
Deborah Nicholson: So I think one of the big ones is where people feel like, oh we should make it so the math is not patentable, and that’s already on the book. So just changing it to math not being patentable isn’t enough. We need to look at why things that boil down to essentially math are getting patented if we wanted to make a change in that area. The other thing that I see a lot is where folks have conflated copyright law or trademark law with patent law and so they want to propose a solution that really belongs to another sphere and it makes it very confusing to talk about policy solutions when you’ve been already talking with someone for a few minutes and you realize they mean copyright law and not patent law.
Tim: I want to backup just for a second, you said that math isn’t patentable. So explain how it is that patents can be wrapped or math can be wrapped into patents that actually get filed and accepted?
Deborah Nicholson: Right, so it’s the anatomy of a patent has a couple of different claims and so you would write a patent that says the math part and how you use it in like step two, three, four, five. So for technologists sometimes you’ll see a patent and steps two, three, four, five boil down to on a computer.
Tim: Or on the Internet.
Deborah Nicholson: Or on the Internet, yes, everything is on the Internet. Or in the cloud maybe. But it wouldn’t be worded that way. It would sound a little bit more exciting, and so it’s not supposed to be math on its own, but math as part of a solution to a problem that has a number of specific steps. That’s what the patent is supposed to be. Don’t write a patent based on that very cursory explanation though. I’m not your lawyer.
Tim: Yeah. Given that we have a world or US PTO as it is, a lot of existing software patents, the OIN runs a pool of software that – of software patents rather that people can then use to prevent certain types of suits, what else can be done, what’s the single most fruitful thing that somebody should want to happen in the world of software patents to them less painful?
Deborah Nicholson: So we don’t necessarily prevent suits; in a perfect world we would have a situation where our people are very well aware of the defensive patent pool, the Open Invention Network codes, and anyone in the pool is like, oh you don’t want to mess with those folks. I don’t think we’re quite there yet, but one day Other things that folks could do, I mean it’s impossible to not infringe, so that’s tricky, but I would say to be proactive. Ignoring the problem with software patent suits doesn’t make your company immune, and smaller companies, I mean as much money as the larger companies have, many of the, especially patent trial suits tend to be focused on smaller companies because they know they don’t have the resources to fight a legal battle and will just settle, so I would say for folks to make sure that you are proactive about doing something as opposed to hoping that it’ll go away before someone sends you a letter, which sounds like a threat, but I don’t send any letters, so.
Tim: At least probably not of the...
Deborah Nicholson: Not like that.
Tim: Not like that.
Deborah Nicholson: Do people still send physical letters that are not lawyers?
Deborah Nicholson: They must. They must.