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08.24.10

Patent Trolls Still Rejoice and David Kappos is Change We Can’t Believe in

Posted in America, Patents at 4:33 am by Dr. Roy Schestowitz

USPTO seal shot

Summary: The USPTO is shooting itself in the face and the new head of the USPTO does not seem to care, instead claiming that patents at the USPTO are “put[ting] Americans to work” (maybe American lawyers)

WE really did have some high hopes when we heard about David Kappos’ appointment. As an IBM veteran we did not expect him to abolish software patents, but we initially hoped he would help improve patent quality or at least tackle the patent trolls. He appears to have done neither so far.

The USPTO has failed many small businesses, especially when it comes to software companies. As Simon Phipps put it a short while ago (a works for a software startup now):

Software patents are broken and the only possible justification for having them is self-defence (which is itself a risky accumulation of armaments that could fall into hostile hands in the future). It seems plenty of important members of both the Linux Foundation and the Open Invention Network make public assertions claiming they believe that assertion, so there should surely be no objection to equipping both of these trade associations with firm, meaningful sanctions.

The question is, what form should those sanctions take? It’s very hard for a trade association to take a position in cases like the Oracle-Google lawsuit. But both organisations have membership rules, and membership in both is a valuable asset. Perhaps OIN and the Linux Foundation need to make membership conditional on members taking no first action against each other with software patents?

According to the pro-patents Patently-O patent filings increase rather than decrease at the USPTO. This is not indicative of success, not from an economical and scientific point of view. To a lawyer this is fine news and also to the USPTO, which makes money out of granting and gardening patents. The people at the USPTO are lowering their standards and broadening their scope in order to make more money, so the patent trolling ‘industry’ is thriving and David Kappos thinks that patents create jobs (for lawyers maybe, as well as USPTO staff). He is clearly confused about patents based on this new Kappos interview, which turns into a debate about software patents only in the comments. Let’s take just one paragraph from Kappos and break it down.

Kappos says: “Well, that’s exactly right. The reason is because patents create jobs.”

That’s a thoughtless statement because it does not take into account businesses which are ruined or made poorer due to patents.

“Businesses needn’t have monopolies and needn’t exclude rivals from the market in order for the market as a whole to offer jobs.”Kappos continues: “Patents enable innovators to put products and services in the marketplace and to hire people.”

They could do that without patents. That’s just the fairy tale we keep hearing from lawyers. Kappos is one of them. Businesses needn’t have monopolies and needn’t exclude rivals from the market in order for the market as a whole to offer jobs.

Kappos then says: “They create opportunity and they put Americans to work.”

“Americans,” eh? Does that confirm that, as Glyn Moody put it last year, patents are “a neo-colonialist plot to ensure the continuing dominance of Western nations” or is that something else?

Kappos finished this paragraph with: “And so every patent application that’s sitting here in our agency is potentially American jobs that aren’t being created.”

“Not in FOSS, they don’t. This is old-think,” said Pamela Jones in Groklaw. Kappos must get his facts straight. He seems to have been immersed in the same old propaganda we always see in lawyers’ blogs. The USPTO is supposed to represent and to serve the interests of science and technology, not the meta-industry created artificially by the patent system this accompanies. Based on this new blog post, even some lawyers would publicly admit that patents have gone the wrong way in the United States. Software patents need to go.

Based on my 40 years of experience in the computer system development, much of it before software patents were introduced, I believe that the alleged connection between such patents and the stimulation of innovation is tenuous at best and probably negative.

How about gene patents? There is another article about these too:

Back in March, we headlined our discussion of the district court judgment in the Myriad case “Pigs Fly.” Guess what?—they’re still aloft. On August 4, in a highly technical patent case that, appropriately enough, involved “porcine virus DNA,” one Federal Circuit judge—dissenting Judge Timothy B. Dyk—suggested that he might agree with the basic principle of the Myriad holding: that isolated DNA sequences are not necessarily patentable.

When even nature (human life) becomes a patent, then it’s rather clear that the USPTO needs to be rebuilt from scratch or abolished. It’s doing almost nothing to promote progress in society anymore. As gnufreex shrewdly put it the other day, “Patents are an alien conspiracy to stop technological progress on Earth”

Most great ideas come from small companies. A lot of people would agree with this. Hurting those companies is the worst one can do and software patents do exactly that. Hulu, which is relatively small, was left to do the squashing of software patents in the courts, not the USPTO, which leaves the expensive process to the outside lawyers:

A federal court in California has invalidated a patent by plaintiff Ultramercial, LLC as not covering patentable subject matter. Specifically, the court applies a test the Supreme Court recently drew up in its landmark decision, Bilski v. Kappos, over business method patents. The test is whether a patent covers a “machine-or-transformation.” In invalidating the patent, the California district court rules that the patent in question is not aimed at a computer-specific application, that the Internet is not a machine, and that the mere act of storing media on computer memory doesn’t tie the invention to a machine.

There are always those looking for short-sighted excuses to file software patents and this new example shows a misconception. The author complains about Facebook, conveniently not thinking about the other side of software patents — that one which affects small companies in particular (being attacked by others’ patents, especially those with a comprehensive portfolio, as Richard Stallman explained elegantly).

We are pretty good at providing patents for specific engineering methods or sophisticated inventions. We even do allow a software patent to stand from time to time. However, there are many ideas that are simply embraced, and extended by the gorillas.

Facebook has just bought a load of patents [1, 2]. Any company with a real product (i.e. not a patent troll) cannot easily sue Facebook without getting attacked in exchange/return. The problem with Facebook is that it can sue back. This whole thing works well for nobody except trolls and lawyers. To Facebook it is also a form of shield — a shield from real competition (with actual products), that is.

Speaking of patent trolls, Soverain looks like a software patent troll in the making. We’ll keep an eye on it. More patent trolls and agitators are named in this new list:

3 Stocks that Could See a Windfall of Cash from Patents

[...]

Note: All three of these companies appear to be racking up impressive licensing deals that will, over the long-haul, generate compelling free cash flow growth

Investors — like lawyers — don’t care about science. They view patents merely as some mechanism with which to enrich themselves. Acacia has just gotten more money to harvest patents and attack companies with them. Even Patent WatchTroll (Gene Quinn) calls Acacia a patent troll, ironically not realising what a troll he himself really is. Patent WatchTroll says that “[p]atent Trolls are just a cost of doing business for big tech; a nuisance that isn’t worth engineering around.” Pamela Jones responds to it in Groklaw by writing: “Translation: just pay up. So what if it’s an unproductive drain on the economy and on innovation. The worst part is, he’s not even kidding.”

It’s people like Patent WatchTroll who make the USPTO the utter mess it has become. It serves greedy solicitors and it harms scientific progress whilst relying on reality distortion fields to hide this.

“People naively say to me, “If your program is innovative, then won’t you get the patent?” This question assumes that one product goes with one patent.” —Richard Stallman

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