Software Patents and Their Challenges

Tags: Content/IP

To view the video, click here.

For a report summarizing the conference written by Laura Littman, Samantha Ford, and Neal Vickery, Click Here.

For the past twenty years, the question of whether and how the patent system should apply to software has remained a controversial and difficult question. As questions, ideas, and criticisms of software patents continue to mount, Silicon Flatirons will bring together a range of leaders in government, industry, practice, and business to discuss how law and policy in this area should evolve to best promote innovation.

Some defend the patenting of software and argue that it promotes innovation by protecting investment in R&D. Others point to the fact that software and Internet patents are eight times more likely to be litigated than other types of patents as evidence that software patents have imposed more of a burden on innovative activity than benefit. Suits from patent assertion entities now account for 61% of all patent litigation, and most assert software or Internet patents. Critics of software patents also point to competitor suits and the need for defensive patenting as imposing significant costs. A Stanford University analysis suggested, in the Smartphone arena alone, that as much as $20 billion was spent on patent litigation and patent purchases in the last two years—and that spending by Apple and Google was greater in this area than on research and development. Indeed, the NY Times reported on this front that “the marketplace for new ideas has been corrupted by software patents used as destructive weapons.”

A related and important range of questions ask whether and how patents in the software and Internet space encourage or impede innovation by entrepreneurial companies. In one study on this topic, Pam Samuelson and her co-authors concluded that “software entrepreneurs do not find persuasive the canonical story that patents provide strong incentives to invest in technology innovation.” Others, however, suggest that patents can play an important role in this space.

This debate on the role of software patents in innovation has raised basic questions of whether patents issued in the software arena are too broad, too vague, or too frequently granted in the face of similar inventions, creating a patent thicket. On that point, Judge Richard Posner has complained that “there’s a real chaos,” suggesting that “the standards for granting patents are too loose.” In response to this debate, a range of different proposals is being discussed in judicial, policy, academic and industry circles that implicate all branches of government and self-help by companies. The courts are considering whether Section 101 of the Patent Act should be more skeptical towards the patenting of abstract ideas. The Patent Office has announced a series of software patent roundtables asking, among other things, whether Section 112 of the Patent Act should be more demanding as to the relevant details of the actual invention. A legislative proposal to shift attorneys’ fees at the conclusion of patent litigation aims to stem the tide of increasing litigation. In the area of self-help, Twitter has created an “Innovator’s Patent Agreement,” which calls for companies to pledge that patents will be used only for defensive purposes. In this conference, we will endeavor to explore the issue—and suggested solutions—from all possible perspectives.


  • Phil Weiser
    Hatfield Professor of Law, University of Colorado Law School
Panel One: Software Patents and Their Effect on Innovation
  • Phil Weiser — Moderator
    Hatfield Professor of Law, University of Colorado Law School
  • Jason Mendelson
    Senior Fellow, Entrepreneurship Initiative, Silicon Flatirons
  • Pamela Samuelson
    Richard M. Sherman Distinguished Professor of Law, University of California Berkeley; Director, Berkeley Center for Law & Technology
  • Pat Kennedy
    Founder and Chairman, Cellport Systems
  • Michael Kallus
    Director, Client Development, RPX Corporation
  • Suzanne Michel
    Senior Patent Counsel, Google

Panel Two: Judicial and Administrative Proposals
  • Harry Surden — Moderator
    Professor of Law, University of Colorado Law School
  • Evan M. Rothstein
    Partner, Arnold & Porter
  • David Jones
    Assistant General Counsel for IP Policy, Microsoft
  • Michelle K. Lee
    Director, Silicon Valley United States Patent and Trademark Office
  • Tim Loomis
    Vice President, Chief Patent Counsel, Qualcomm

Panel Three: Legislative and Self-Help Proposals
  • Paul Ohm — Moderator
    Associate Professor of Law, Associate Dean for Academic Affairs
  • Randy Milch
    Executive Vice President, Senior Policy Advisor to the CEO, Verizon Communications Inc.
  • Mark Chandler
    Senior Vice President, General Counsel, & Secretary, Cisco
  • David Kappos
    Partner, Cravath, Swaine & Moore LLP
  • Arti K. Rai
    Elvin R. Latty Professor of Law, Duke University School of Law

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