Academic Perspectives – High tech Intellectual Property Legal Blog

Patent Statistics in the GAO Report

The GAO just released a report on patent litigation: IP: Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality (GAO-13-465).

In this report, the GAO states that “The implication as of now, the year 2013, is that half of all issued patents are software-related, and that the PTO is issuing about 2200 software patents a week.”

Aharonian, in a pointed screed addressing the GOA report, points out that this is inaccurate. He provides a graph of software and non-software electrical patents issued weekly.

As the graph shows, the number of software patents per week (blue line), as of 2012, is about 1100, half of the GAO figure. Further, little has changed in decades in the relative number of software and non-software electronics patents (red line). So not only are software patents not the majority of issued patents, they are not even the majority of issued Electronics patents. That the two lines much correlate reflects the fact that software is part and parcel of technology, so intimate with the rest of the Electronics arts that software patent numbers fluctuate with economic forces that affect patent filings. He notes that his data is based on a few assumptions on what characterizes a software patent.

However, the GAO’s assumption is based on a combination of “a number of entire patent classes that PTO economists have said are most likely to include patents with software-related claims, and this includes method patents. For the list of these classes.” (GAO paper, footnote 27).

The problem, of course, is that there are no “exclusively software” classes. So if an entire patent class is counted, it is extremely likely to include non-software cases as well.

Aharonian concludes his screed by offering to provide all of his data to the GAO, if requested. And even offering to release his software and databases to them, to enable them to recreate and verify his numbers. I hope that the GAO takes him up on his offer.

Legal Ethics Around LinkedIn Endorsements and Recommendations

I try to keep up with developments in Legal Ethics by following the Legal Ethics Forum’s blog. This post by Andrew Perlman about LinkedIn endorsements was interesting.

The question is whether the new “Endorse a skill” feature on LinkedIn could violate legal ethics rules. Andrew suggested that it may violate Rule 7.1 of the Model Rules, which states that:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

I think there is a strong argument that these endorsements are not statements by the lawyer about his or her own skills, and thus falls outside the purview of Rule 7.1.

However, California has more stringent rules. California’s Rules of Professional Conduct address this in Rule 1.400. The item of particular interest, however, is the standards adopted by the Board of Governors. One of those standards states:

(2) A “communication” which contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer such as “this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.”

A LinkedIn page would clearly constitute a “communication,” defined among other things in Rule 1.400 as “(2) Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers; or (3) Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof.

Therefore, it appears that an attorney’s LinkedIn profile, in California at least, should include the express disclaimer proposed by the standards.

In an overly cautious move, I have updated my LinkedIn profile in light of this. I am also planning on contacting the attorneys at LinkedIn to see if they can make such disclaimers part of the default profile configuration, at least for attorneys.

What do you think?

A response to Professor Lemley’s Paper on Functional Claiming to Limit Software Patents

Professor Lemley has posted a paper suggesting that if we more strictly enforced 35 USC 112(f), the interpretation of means for language, then much of the problem with software patents would be eliminated.

His paper can be found here: Software patents and the return of functional claiming.

His basic argument is that most software claims are means-for claims, because they use the phrasing “a computer system programmed to.” Means-for claims are construed to only “cover the corresponding structure, material or acts described in the specification and equivalents thereof.” The courts have interpreted means-for equivalents narrowly. Professor Lemley hopes to require the inclusion of algorithm/code/pseudocode in the Specification, and have the claim scope be limited to that code, and its equivalents.

Of course, this would likely invalidate most existing software patents which do not include algorithms. It would also lead to an immediate change in claim formats, to avoid the language which was interpreted to trigger the “means for” type analysis. In this, Professor Lemley appears to take a “magic language” based approach to a problem that is not the result of poor language choices. The primary problems with software patents are lack of rigorous prior art searching and the incredible expense of responding to even an unreasonable lawsuit. Even if Professor Lemley’s interpretation were adopted by the courts, it would be a stopgap measure, until patent owners could rephrase their claims to once again avoid limiting the claims to the specific structures/algorithms described in the Specification.

Greg Aharonian, a perennial critic of the patent system, does not agree with Professor Lemley’s thesis, and takes apart his argument in some detail. He has given me permission to post his response here. Be aware, he uses quite colorful language.