Bonum Certa Men Certa

David Kappos Does Not Understand Why the USPTO is Broken

A ring



Summary: The USPTO claims to be working to resolve its problems, but it might only make things worse (patent saturation) rather than better

LORA Bentley from IT Business Edge says that the US patent office is trying to "streamline [the] application process" as though the issue with the office is that it doesn't issue patents quickly enough.

In a Mercury News piece at SiliconValley.com, writer Chris O'Brien details a conversation he had with U.S. Patent and Trademark Office director David Kappos. Even Kappos admits the system is broken. "We are trying to work our way through a broken system," he told O'Brien. The goal is to improve the average time between application and approval from the typical three and a half years (which is how long Facebook waited for approval of its news feed patent) to a single year.


What's broken is scope, not pace or litigation (e.g. amassing damages for collection from several jurisdictions). It sometimes seems as though those who are greedy for more patents, namely lawyers, have hijacked the criticism and the call for a reform. They pretend that the USPTO is broken because it does not issue enough patents. Rather, the office should adjust scope, then the workload will not be an issue and there will be no backlog, either (or a much smaller one). David Kappos, the Director of the USPTO, once complained about "creating a new 20-year monopoly for no good reason." He was referring to patents that should not be granted, so how is streamlining the solution? It's not.

The USPTO ought to look at how a particular class of patents actually advances/hinders science and society, not how it helps protect a company from competition. In separate news, the USPTO ratifies a project that uses free labour (volunteers) to endorse or reject patents. How is that beneficial? Bad patents should just not be allowed in the first place.

The first change is that it looks like the Patent Office is going to open up the patent approval process in a pilot program by allowing for a sort of peer review using evidence of prior art or prior patents to be submitted to disqualify a current patent application filing.


This is not the solution, it's a band-aid on top of a broken system (just follow the symptoms). The USPTO should abolish many types of patents that do nothing to improve science. Software patents are just one example. Early in the week we wrote about Gregory Girard getting arrested. He had a software patent which was used for trolling, as this new article reminds us.

Last year, The Prior Art covered Garrod's side project, an unusual one for a PubPat attorney: he owns a patent-holding company, Bedrock Computer Technologies, which has enforced a software patent by suing several technology companies in East Texas.


Google should also drop its obsession with software patents, which it not only applies for [1, 2, 3] (trivial ideas even) but also harbours in YouTube. The same goes for Facebook, whose latest controversial software patent [1, 2] gives reasons for unrest.

Earlier this week, Scottish blogger and law lecturer Andres Guadamuz accused Facebook of aiming to protect "a trivial use of databases".

"It seems like the software patent standard in the US is so low that all one needs is to get a clever patent attorney to attach a lot of mumbo jumbo to mundane database functions and voila, you are given a patent," he wrote.


Another controversial type of patents would be gene patents. There's a broad spectrum of patents on life and nature; this is ridiculous as not only does it contribute nothing to advancement but it also increases deaths [1, 2]. "Commons Sense" is the title of this new post which is critical of such patents.

One of my recurring frustrations in making my case against gene patents is the failure by some to grasp the argument I am trying to make regarding the nature of "the commons". Perhaps I have been unclear, or maybe the approach I am taking to property law and justice is too far afield from those more frequently made to be immediately understood. Yesterday, however, I gave a guest lecture in an ethics course for ICT students (software programmers, mostly), and gained a lot from the experience. These students not only grasped the argument, but embraced it, and helped to clarify a subtlety that I need to elaborate upon in defining the "commons by necessity" that I believe genes and other parts of the universe belong to.

Briefly, to summarize, I argue that the justice of property rights derives from the logical and practical ability of people to enclose a space, and the need for a rival to use violence to dispossess a possessor of the space. Thus, property rights in land and movables are grounded in these brute facts. There is no such grounding for intellectual property rights. Moreover, there are parts of the universe that cannot be justly owned, and IP claims over these "commons by necessity" are unjust. These are parts of the universe which cannot be held exclusively by anyone, as a matter of brute fact. Examples include: the laws of nature, radio spectra, and genes which are de facto unencloseable. My thanks to Stephan Kinsella who helped me to realize that this applies, actually, to all ideas, and thus makes all IP law a similar incursion on an unencloseable commons by necessity.


Here is an informed opinion about the Eastern District of Texas, where many patent trolls choose to strike.

My friend Sawyer is back with another post in his series of talking about software patent issues. As I mentioned before, Sawyer is a real person named after our intrepid friend in LOST (I haven’t seen it this week – no spoilers please) who has agreed to help us navigate the parallel universe known as software patent land. I’m channeling Sawyer’s points of view as a public service announcement since he’s uncomfortable being named publicly – these are his words, not mine. Today’s post is on the famed “Eastern District of Texas” (EDTX), one of the most popular places in the United States for patent litigation.


To patent trolls, it's simply a matter of loopholes and economics. "How to Cut Your Patent Costs" is the title chosen by this person who described himself as: [emphasis is ours]

Rick Martin is a native of Brooklyn, N.Y. He entered law school at age 38, and now is a patent attorney in Colorado. He founded his firm in 1992 and has written hundreds of mechanical, electrical, and software patents over the past 25 years.


"Patent attorney"... and what has he actually contributed to science?

The USPTO is in serious trouble because lawyers and patent trolls (who are often lawyers) took over this system, which only rewards monopolies and lawyers; neither contributes to the betterment of science and the USPTO is looking to expand granting of monopolies (to use the phrase of Kappos) rather than reduce them. This system is self-defeating in a way.

Comments

Recent Techrights' Posts

Microsoft in Freefall in Finland
Can Finland eradicate Windows from all its infrastructure, including core operations that are sensitive to sabotage by cracking?
Google's Chrome Passes 70% and Web Standards Are Dying
The Web is quickly becoming devoid of any standards
Slopwatch: Plagiarism and Ponzi Scheme, Bubble About to Burst Entirely, Admits Goldman Sachs
the hype that Google News and The Register MS actively participate and profit from
The Register MS Says "AI Web Crawlers Are Destroying Websites", So Why Does The Register MS Help 'AI' Companies? (Spoiler: Money)
People need to call out The Register MS on its hypocrisy
Slopfarms Already Peaked, They Will Die When Slop Companies Run Out of Money to Borrow
slopfarms will lack an actual "engine"
Why We Publish Information About the SLAPPs (But Not About the Legal Process), an Abuse of Process by Americans Trying to Silence Critics of Their Employer, Microsoft
It doesn't take thousands of pages to explain something simple
 
Gone With the BRICs (or BRICS): "Linux 8" in Cuba
GAFAM must be worried
Telecompaper Reports Microsoft to Reduce the Workforce by Another 10% (in France)
Imagine what this will do to staff's morale
India is Back to Windows 8 (Market Share Down to 8%) as Android Soars to a New Record High
For Microsoft, India is a runaway market
Links 02/09/2025: SCO Summit and Russia Suspected Of Jamming GPS
Links for the day
Gemini Links 02/09/2025: Mediterranean Marriage and Staying Connected at 35,000 Feet
Links for the day
Links 02/09/2025: Attacks on Unions, Microsoft TCO, and DDoSing a Growing Problem
Links for the day
Internet Relay Chat Didn't Fall Off a Cliff
IRC will turn 40 in less than 3 years from now
The UEFI 9/11 - Part V - This is Not a Drill (Disable "SecureBoot" Now)
A "9/11" Coming
There's No Obligation to Speak to Anybody
The very fact that "bkuhn" is till spending time in social control media says a lot about his poor judgment
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 01, 2025
IRC logs for Monday, September 01, 2025
Microsoft Trying to Force People to Resign (Amid Mass Layoffs) a Strategy That Takes Its Toll
Microsoft seems to be circling down the drain and the "final flush" will be the moment the "hey hi" (AI) bubble implodes completely
Google Simply Cannot Be Trusted
Only fools would trust GAFAM
Admission That a Third Party (or Parties) Funds the SLAPPs Against Techrights
This can end up costing them over a million dollars
Modifying and Writing One's Own Computer Programs is Not a Crime (or: Google Proves That Stallman Was Right)
We're generally gratified to see so many positive mentions of him
Why We Stopped Publishing Videos (for Now)
We'll probably get back to videos one day, but it's hard to say when or to what extent
What Animal Rights Activism Teaches Us About Sympathy and Focus
It's possible to believe that the planet is warming, that we must do something about it, and still eat eggs and butter
When You Turn Web Sites About Tech Into Political Sites
A lot of people fall into the trap of catering only for particular groups
Gemini Links 02/09/2025: ROOPHLOCH 2025 and Lagrange 1.19 Released
Links for the day
Gemini Links 01/09/2025: News Corp. WSJ and A Month With NixOS
Links for the day
“Sideloading” Never Killed Anybody
There are many online discussions this week about the misnomer "sideloading"
Slopwatch: Google News as FUD Vector Against Linux and Plagiarism Enhancer, Serial Slopper (SS) Uses LLMs to Googlebomb "Linux"
Slop destroys the Web not just by screwing with search engines and helping plagiarists. It's also responsible for de facto DDoS attacks...
Links 01/09/2025: "Attacks on Science" and China's "Soft Power" Grows
Links for the day
Links 01/09/2025: Fresh Backlash Against Slop and "Norway’s Electricity Crisis is About to Hit Britain"
Links for the day
Writing and Coding Isn't Always Enough
Last year we had to assume a role we didn't have before: litigants
Links 01/09/2025: Catching Up (Mostly via Deutsche Welle), "Windows TCO" Effect in UK
Links for the day
Gemini Links 01/09/2025: Linguistic Barriers and "Web 1.0 Hosting"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 31, 2025
IRC logs for Sunday, August 31, 2025
Autumn Has Come
Autumn should be exciting in all sorts of ways; it'll also mark our anniversary
The UEFI 9/11 - Part IV - External Interference
They all seem to be playing a role in crushing Software Freedom and self-determination for users
Links 31/08/2025: Baggage Claim Scams, an Insurrectionist’s War on Culture, and a Sudden Robotics Hype
Links for the day
Gemini Links 31/08/2025: Reviewing Netsurf and Slightly Less Historic Ada Design
Links for the day
IBM Has Taken Control of GNOME
Don't expect a successor to be found any time soon
Links 31/08/2025: Google Gmail Data Breach and LF Puff Pieces for Pay
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, August 30, 2025
IRC logs for Saturday, August 30, 2025
This is What Google News Has Become
Moments ago