Bonum Certa Men Certa

The Patent System -- USPTO in Particular -- Comes Under More Fire

David Kappos



Summary: USPTO needs to change in order to restore approval from citizens whom it supposedly serves

HOW MUCH does the USPTO want to be hated? More and more people speak out against it these days, simply because it cannot make a case in its defence when those who benefit are not scientists but lawyers and franchisees. A little while ago, TechDirt -- a longtime patents critic -- did some decent investigative work to demonstrate a contemporary chaining of patent trolls, working at someone's behest a lot of the time (Nathan Myhrvold uses this trick extensively). To quote later parts of the detailed analysis:



Unfortunately, that's about where the sleuthing runs out... and it really doesn't tell us that much. We already knew that Vertigo was the parent company, and who owns/runs Vertigo is secret. We did learn that another company owned by Vertigo is using more patents from the same inventors to sue more companies, but that's about it. Either way, as a basic exercise, it certainly teaches you a fair amount about the sneaky and hidden nature of how patent trolls operate, with layer upon layer of shell companies, changing patent assignments and licenses, all of which hide whoever is actually pulling the strings. It really does make you wonder how this kind of thing does anything whatsoever to improve innovation.


Michael Trick writes about "More patent madness!", putting forth an example of something that was patented long after it had really been 'invented':

Limited discrepancy search has been around since 1995 and occurs often in research (Google scholar is showing 465 references). It is a pretty simple idea: if you are doing a tree search and you have a good idea that, say, all the variables should be 1 (but might not be in the optimal solution), you first search the “all 1″ side of the branches, then try the “all 1 except one” then then “all 1 except two” and so on. Call it twenty lines of code to control the tree search in this manner. Seems like a reasonable approach, but patentable? You have got to be kidding!

[...]

Patents (and companies trying to enforce them) make creating open source software much, much more difficult. How many developers would know that if you embed a method from a 1995 paper in software, you may run afoul of a patent claim?

Patents exist to encourage innovation. The current system, with nonsense like this, serves only to stifle it.


"Inglourious Software Patents" is another good new post which goes around the Web at this moment. It says:

The patent system exists to provide an incentive for innovation where that incentive would not have existed otherwise.

Imagine you're an individual living in the 19th century. Let's say the patent system does not exist and you have an idea to make a radically better kind of sewing machine. If you invested the time to develop your idea into a working invention, the existing sewing machine companies would just steal your design and crush you in the marketplace. They have massive distribution and production advantages that you wouldn't be able to compete with. You wouldn't be able to monetize the initial investment you made into developing that invention. Therefore, you wouldn't have invented the radically better sewing machine in the first place.

From this perspective, patents are actually a rather clever hack on society to encourage innovation. By excluding others from using your invention for a fixed amount of time, you get a temporary monopoly on your invention. This lets you monetize your invention which makes your initial investment worthwhile. This in turn benefits society as a whole, as now society has inventions that it wouldn't have had otherwise.

[...]

Quite the opposite. Software startups are thriving nowadays in spite of software patents rather than because of them. Instead of helping startups get off the ground, patents are a cost. Startups must build "defensive patent portfolios" and worry about getting sued by patent trolls or businesses trying to entrench their position. Instead of patents being a protective shield for a startup, they're instead a weapon that causes economic waste.


Vivek Wadhwa, consistently a critic of software patents despite having some which he now regrets [1, 2, 3, 4, 5] advises China not to compete on the basis of patents:

The Times quotes David J. Kappos, director of the United States Patent and Trademark Office, as saying that the leadership in China “knows that innovation is its future, the key to higher living standards and long-term growth. They are doing everything they can to drive innovation, and China’s patent strategy is part of that broader plan”. Kappos seems to believe that, with patents, China is unleashing a golden age of innovation.

Kappos is wrong.

The reality, as I explained in my BusinessWeek column China Could Game the U.S. in Intellectual Property, is that patents will neither make China more innovative nor benefit the global economy. Just as the vast majority of China’s academic papers are plagiarized or irrelevant, so will its government-sponsored patents be tainted. In contrast to the tiny proportion of Chinese academic papers that serve to expand the world’s knowledge base, however, Chinese patents will serve as land mines for foreign businesses. They will allow China to demand license fees from companies that do business there or to shut them out entirely. (And these will hurt China’s own startups.)


Kappos did not bring the change we had hoped for [1, 2, 3]. People who actually make products hope for change... real change. Is there a chance of In Re Bilski making a comeback in light of conflicts of interest?

Apparently two of the SCOTUS justices, Scalia and Thomas, were deeply involved in “conservative” (not sure what they are conserving but it’s not impartial justice) political events. That brings to mind how they ruled in Bilski. Did these two justices have a hidden agenda and should they have recused themselves or should they be impeached?


It's too easy to find some reasons to sack a SCOTUS justice (e.g. Kagan for allegedly being gay). The problem is likely to be the USPTO, which is still run by people who simply treat is like business as opposed to an establishment dedicated to the goal improving innovation. The patent system has been hacked. It's vulnerable and antiquated. ⬆

"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

Intercontinental Brigading - Part XXXIV - Women as Hostages, Even Spouses
First he put his own spouse behind bars by accusing the spouse of what he himself seems guilty of
A Geminispace Tally
That's not the Web, it is an alternative to it
Intercontinental Brigading - Part XXXIII - Shooting the Messenger is a Presidential Tactic
why our ministers are looking for ways to fix the law.
"The Judge Accepted That Mrs Schestowitz Had Been the Subject of a Vicious Campaign of Online Harassment"
That's consistent with how they men treat women
Intercontinental Brigading - Part XXX - Breaking This Year’s Election Process With Bug Doors in Restricted Boot
Thankfully here in the UK we typically still vote with paper and pencil
 
As XBox Goes Out of Business Helen Chiang Adds Insult to Injury
XBox sales are worst in 25 years
Steven Vaughan-Nichols is Slop
Just look at this
The Register MS is "Hosting a Dinner" for Sponsors
Remember that The Register MS keeps publishing spam about "AI"
Intercontinental Brigading - Part XXXVI - A Potent Microsoft Threat to Administration of Justice Globally (Not Just Fair Elections)
Breaking into machines to cover up one's own crimes
Intercontinental Brigading - Part XXXV - When One Does Not Understand Security (Nor Ever Pursues Security)
One might therefore conclude that Garrett is a proponent of American back doors
Links 04/11/2026: "Democratic Establishment" Wins Big and "Pentagon Sued Over Hegseth’s New “Future of Warfare” Committee Led by Musk"
Links for the day
Andy's Latest Writings About Proton CEO Andy Yen, "JavaScript Required", and Slavery in Technology
Andy (of The Cyber Show) has some new material
Intercontinental Brigading - Part XXXII - Malfunctions Reported in Windows Voting Machines (as Usual)
"There are always problems," Ryan told us
Gemini Links 04/11/2026: GoAccess, Adopting Gopher, and Twisty Passages
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, November 03, 2026
IRC logs for Tuesday, November 03, 2026
Intercontinental Brigading - Part XXXI - Microsoft and Promoters of "Secure Boot" Are to Blame
the important thing is that the dictator and Microsoft can remotely control all computers
Links 03/11/2026: Science Around "Near-Death Experiences" and "Do Animals Grieve?"
Links for the day
Gemini Links 03/11/2026: Guitar, 3D-Printable Electric Spinning Wheel, Against Haven Social, and More
Links for the day
Intel Corporation Down Over 51% in One Month, the US Bailout Didn't Work
Is the slop industry [sic] next?
Microsoft European Development Centre (EDC) Next to be Culled?
No time for that anymore
Mass Layoffs at SUSE, Over 10% of Staff Gone
Ignore their excuses
When You're a Software Developer and They Tell You That Your Occupation is Dead or Dying in Order to Sell Dysfunctional Offerings Based on Hype (and Plagiarism)
Disbelief is a strength when companies borrow trillions of dollars to sell a dud and construct a pyramid scheme
Links 03/11/2026: Slop-Tied Debt is Becoming a Crisis (Lenders Panic), "Ukrainian Journalists Urge Global Media Not to Look Away From Russian Aggression"
Links for the day
Malaysia Seems to be Exploring Digital Independence With GNU/Linux and More
not too bad
Microsoft Windows is Crashing in Republic of South Korea
Like in Japan, they seem to be shutting the lid on decades of Microsoft-isms
Think Less, Aim for Less (When It Comes to Hardware)
An abundance of hardware being wasted on a pyramid scheme will become a cautionary tale one day
Gemini Links 03/11/2026: Stargazing, Linux-Powered Prism "Ambient Computer", and Abandoning Streaming Disservices
Links for the day
GNU/Linux Made Big Strides in Portugal This Year
Microsoft had many layoffs in Portugal in recent years
GNU/Linux in Argentina Now Measured at 8% "Market Share"
Argentina is known for exporting skilled footballers, not advanced technology, but it has a large population, which we can hope will dump Windows
Microsoft is Borrowing Loads of Money While Telling 60,000 Workers to Take the "Offer" and Leave, Microsoft Wants Bailouts From the Dictator
Vote in elections and also vote with your wallet
Microsoft and Spoilt Food
Some whistleblowers may be needed here
Intercontinental Brigading - Part XXIX - Undermining US Election While Engaging in Lawfare in England (BBC) Against Publishers That Cover Anti-Election Violence
The elephant in the room is back doors in voting machines
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, November 02, 2026
IRC logs for Monday, November 02, 2026
Links 02/11/2026: Bracing for US Election and New Zealand Has November 7 Election
Links for the day
Gemini Links 02/11/2026: Beginning With Gemini Protocol, Looking for CoCs, and Slop for Local Data
Links for the day
NDA-Compatible PIPs and RAs at IBM Red Hat
We welcome Red Hat whistleblowers who can share with us the NDA/s passed their way
The Tower of Babel
More is not better
When Large American "Tech" Companies Can No Longer Complete Payroll
In spite of several very large waves of Dell layoffs, which the media reported on, it seems like they are still experienceng payroll problems, maybe that's why money is being borrowed
GNU/Linux Rises in African's Largest Population
15% in Nigeria [...] A country with over 200 million people
The Register MS Has Just Published a Fake Article With "AI" 28 Times in the Page (Communist Party of China Entity Paid for That)
In IRC, someone has just pointed out that an article at The Register MS repeats Microsoft's lies about its financial situation
Windows Down to All-Time Low, Says statCounter, While Microsoft Tells 60,000 Workers They're No Longer Necessary
Microsoft must be feeling "salty" right now
A British Uphill Battle to Eliminate Microsoft and Its American Back Doors
There are places of work and homes where GNU/Linux is installed and regularly used, not as a mere hobby but as a hyper-productive, practical tool
Writing for Good
The Web has an abundance of junk
Technical Coverage of US Elections
When elections are done by computers and decided by computers it becomes a tech issue
By Killing the "Linux News Section" in Softpedia (the Most Popular Section, Based on Its Editor) Softpedia Killed Itself
Enjoy Ballmer
Linkspam in "It's FOSS" Today (and It's Not Even FOSS)
free-to-access ad for some dodgy companies and the URLs are 'tampered' for cashback
Links 02/11/2026: Slop Destroying Mathematics and "Democracy is Not on the Ballot" (in US)
Links for the day
Celebrating Photography, Celebrating Life, Celebrating Magnificent Humanity, Not Plagiarism Disservices
Any time we adopt or spread slop imagery we are participating in the problem
Year-Long Celebration Starts on Saturday
This coming Saturday we turn 20
Intercontinental Brigading - Part XXVIII - Microsoft Doesn't Want People to Speak About Microsoft-Controlled Restricted ('Secure') Boot, a Silent Injustice and Back Door/Kill Switch
Can we please stop treating this as normal or acceptable?
On Desktops/Laptops, Clownflare Sees Windows at Under 60% and GNU/Linux at 15% This Past Weekend
Impressive if accurate
Microsoft Lunduke is Slop
Microsoft Lunduke is just trying to stir up hatred
Intercontinental Brigading - Part XXVII - Shooting the Messengers (People Who Oppose Microsoft Back Doors), Even Across the Atlantic
Keep this in mind later this week when a dictator either discredits the voting or covertly tampers with the voting process
Microsoft Wants 60,000 Employees Gone (One Way or Another)
At IBM, 15% of staff got marked as candidates for removal; at Microsoft it's almost 30%
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, November 01, 2026
IRC logs for Sunday, November 01, 2026
Jean-Claude Van Linus
Claude talking?