Not all patent trolls are created equal

STANFORD — As the US Patent and Trademark Office prepares to open a Silicon Valley office, intellectual property stakeholders gathered at Stanford to tackle a big reason for USPTO’s enhanced regional presence: Software patents.

The USPTO hosted a roundtable discussion at Stanford Law School to discuss present findings related to the patent office’s initiative to improve the quality of software patents.

Bernie Knight, Drew Hirshfeld, and Michelle Lee, former head of patent management at Google, moderated the discussion which engaged lawyers, entrepreneurs, programmers and academics.

One debate centered on whether actual code should be required to secure and hold a software patent.

IBM intellectual property counsel Pete Tennet did not see the need to tie software patents to specific machines and computers.

Stanford Law professor Mark Lemley and Santa Clara Law professor Colleen Chien, though, sought to apply the rules more strictly so that patents referred to actual software rather than a problem solved through software.

Chien noted, as she presented her findings on the patents held by patent assertion entities (PAEs), also known as patent trolls:

“Not all code is created equal. … There’s a lot of variety among PAE patents. Some of them are actually quite good.”

To illustrate, Chien showed examples of patents with confusing high-level diagrams and others with clear programming code.

Patent trolls are also changing the ways startups approach marketing their ideas.

Representing the recently formed Application Developers Alliance, John Potter spoke of how startups were avoiding making major business announcements to avoid potential extortion from patent trolls:

“In baseball, a tie goes to the runner.”

If software developers cannot understand or replicate the contents of a patent they are told to be violating, Potter suggested, there may not be an invention at all.

Julie Samuels of the Electronic Frontier Foundation told the crowd that we need to fix the notice problem, as software developers should learn more about the needs and bounds of the patent system to avoid attacks from patent trolls.

Samuels currently holds the position of the Mark Cuban chair to eliminate stupid patents.

Next week the patent office will be holding another roundtable discussion on examination processes at Santa Clara Law, with another discussion on software patents later this month in New York.