Bonum Certa Men Certa

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

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

Recent Techrights' Posts

European Patent Office Management Mocked for Trying to 'Bribe' Staff With a Little Food
The Office is having a crisis; a little breakfast treat won't solve it
The Corporate Media Intentionally Overlooks How Google's Debt Trebles in Just Over a Year
We'll soon see how much more money Microsoft has borrowed
(Trigger Warning) Jeremy Bicha & Debian-Edu, TecKids, Ubuntu incest scandal at DebConf25
Reprinted with permission from Daniel Pocock
The Corrupt Lecture the Non-Corrupt - Part X - Deliberately Violate European Patent Convention (EPC), Tolerate Cocaine Use in Management, Hide That From Staff and Stakeholders
The "Alicante Mafia" (as staff calls it) is a disgrace to Europe
Apparently Last Day for Nearly 1,000 Confluent Workers IBM Laid Off Last Month
IBM is a dying company pretending to be strong because of its age
 
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 30, 2026
IRC logs for Thursday, April 30, 2026
Microsoft Debt Rose Almost $50 Billion Since We Moved to Debian
GAFAM has a new name for debt
Google News Sloppy Again
Today was disappointing
SLAPP Censorship - Part 62 Out of 200: Garrett and Graveley Issue Astounding Copy-Paste Masterpiece Asserting Publicly-Accessible Embarrassing Facts Must Remain Hidden
Are Garrett and Graveley twins separated at birth but joined by GNOME and Microsoft?
Links 30/04/2026: Barrage of Lawsuits Against Slop, Microsoft's Stock Crashes
Links for the day
Microsoft Says Mass Layoffs Are Coming and Puts a Price on Them
Microsoft will shrink
Upgrade Successful
we had a downtime of only 1-2 minutes overall (for two reboots)
Links 30/04/2026: Slop Industry Cannot Keep Up With Bills, "The World Is Getting Too Hot to Feed Itself"
Links for the day
Then Come the DDoS Attacks
Is someone trying to 'kill' Techrights?
The Register MS Running Spam Pieces for Huawei, a Banned Company
Money does not excuse bad behaviour
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 29, 2026
IRC logs for Wednesday, April 29, 2026
Gemini Links 30/04/2026: Outdoor Time, Old Computers, and Joining Geminispace
Links for the day
In Past 6 Months IBM Lost About 100 Billion Dollars in 'Value' While Debt Ballooned to 70 Billion Dollars
Welcome to a universe of fake finances and phony accounting based on fictional assets with made-up 'worth'
Dr. Andy Farnell on Weaponising Morality Against Technofascism and Slop
It's longer than a "tweet", so social control media addicts are likely mentally unfit to read it
Six Months
Techrights will be around (and active) for a very long time to come
If We Move Everything to Devuan...
IRC, Git, Apache and so on
Why We Publish "The Corrupt Lecture the Non-Corrupt"
We intend to report the facts, fearlessly, until real and lasting solutions are reached
SLAPP Censorship - Part 61 Out of 200: Garrett and Graveley Must Understand That Reporting Women's Issues in the United States of America (“the US”) is Not Impermissible
when you cover Microsoft corruption and have real effect
Weeks After Mass Layoffs of Red Hat Engineers We Learn of European "Buyouts" and Layoffs at IBM
At Microsoft, they tell us there are merely "buyouts", but they don't tell us what happens if you say "no!"
OS Upgrade Tentatively Scheduled for Tomorrow
We have some contingencies in case the upgrade goes wrong
Campinos is a Lame Duck President This Year at the European Patent Office (EPO)
The strikes are not ending. If anything, they intensify further.
Links 29/04/2026: LLM Chatbot Usage Goes Down Sharply (as Do Stocks Associated With Them), Microsoft's Circular Financing Accounting Fraud at Risk
Links for the day
Gemini Links 29/04/2026: Returning to an Exodus and Farewell APU
Links for the day
Slop Has a Long Way to Go Before It Gets Basic Facts Right
Please do not rely on slop for anything
The Corrupt Lecture the Non-Corrupt - Part IX - European Patents That Are Illegal (But Serve Non-European Monopolists in Exchange for 'Quick Cash')
People who shamelessly violate the European Patent Convention (EPC) have the audacity to lecture workers on "ethics"
Canonical is Selling You, Ubuntu is a Data-Collecting Platform
Canonical is looking for money in the wrong places
Links 29/04/2026: "Snowden Affair 13 Years Later" and "Landmark Data Center Pause"
Links for the day
Seems Like Only Techrights Covered IBM Laying Off About 33% of Confluent Staff
How can such a large round of layoffs evade today's media?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 28, 2026
IRC logs for Tuesday, April 28, 2026
Gemini Links 29/04/2026: Bad Diet, New Middle Ages, and Temperature Model
Links for the day