Law Commons^™

Brief Of Amici Curiae Law, Business, And Economics Scholars In Alice Corp. V. Cls Bank, No. 13-298, Jason Schultz, Brian Love, James Bessen, Michael J. Meurer

Faculty Scholarship

The Federal Circuit’s expansion of patentable subject matter in the 1990s led to a threefold increase in software patents, many of which contain abstract ideas merely tethered to a general-purpose computer. There is little evidence, however, to suggest this expansion has produced an increase in software innovation. The software industry was highly innovative in the decade immediately prior to this expansion, when the viability of software patentability was unclear and software patents were few. When surveyed, most software developers oppose software patenting, and, in practice, software innovators tend to rely on other tools to capture market share such as first-mover …

Patent Litigation And The Internet, Samantha Zyontz, John R. Allison, Emerson H. Tiller, Tristan Bligh

Faculty Scholarship

Patent infringement litigation has not only increased dramatically in frequency over the past few decades,¹ but also has also seen striking growth in both stakes and cost.² Although a relatively rich literature has added much to our understanding of the nature, causes, and consequences of patent litigation during the past two decades,³ many interesting questions remain inadequately addressed. The nuances of and trends in patent litigation in different technology fields and industries, for example, are still understudied.⁴ Litigation of patents on new technologies has likewise received a dearth of attention. Here we seek to help begin …

Software Patents, Incumbents, And Entry, John R. Allison, Abe Dunn, Ronald J. Mann

Faculty Scholarship

Software patents have been controversial since the days when "software" referred to the crude programs that came free with an IBM mainframe. Different perspectives have been presented in judicial, legislative, and administrative fora over the years, and the press has paid as much attention to this issue as it has to any other intellectual property topic during this time. Meanwhile, a software industry developed and has grown to a remarkable size, whether measured by revenues or profitability, number of firms or employees, or research expenditures. The scope of software innovation has become even broader, as an increasing number of devices …

The Disputed Quality Of Software Patents, John R. Allison, Ronald J. Mann

Faculty Scholarship

We analyze the characteristics of the patents held by firms in the software industry. Unlike prior researchers, we rely on the examination of individual patents to determine which patents involve software inventions. This method of identifying the relevant patents is more laborious than the methods that previous scholars have used, but it produces a data set from which we can learn more about the role of patents in the software industry. In general, we find that patents the computer technology firms obtain on software inventions have more prior art references, claims, and forward citations than the patents that the same …

Commercializing Open Source Software: Do Property Rights Still Matter?, Ronald J. Mann

Faculty Scholarship

For several years now, open source software products have been gaining prominence and market share. Yet the products themselves are not as provocative as the way in which they are developed and distributed. Two related features of the open source model are distinctive: the use of collaborative development structures that extend beyond the boundaries of a single firm, and the lack of reliance on intellectual property ("IP") rights as a means of appropriating the value of the underlying technologies. Firm-level control of intellectual property is replaced by a complex set of relations, both informal and sometimes contractual, among strategic partners …

Do Patents Facilitate Financing In The Software Industry?, Ronald J. Mann

Faculty Scholarship

This Article is the first part of a wide study of the role of intellectual property in the software industry. Unlike previous papers that focus primarily on software patents – which generally are held by firms that are not software firms – this Article provides a thorough and contextually grounded description of the role that patents play in the software industry itself.

The bulk of the Article considers the pros and cons of patents in the software industry. The Article starts by emphasizing the difficulties that prerevenue startups face in obtaining any value from patents. Litigation to enforce patents is …