01.24.11

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

Posted in Patents at 3:07 pm by Dr. Roy Schestowitz

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

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Social Control Media is a Passing Fad, We Should All Go Back to Blogging and Subscribing to RSS Feeds

    The whole "social control media" phenomenon has been oversold or promoted using lies; in reality, as a mountain of evidence serves to show, it's a way to manage society at a macro scale



  2. As Andrei Iancu Removes Himself From the Patent and Trademark Office All Eyes Are on Biden's Next Nomination

    Patent zealots and their front groups already lobby Joe Biden to put one of them in charge of the U.S. Patent and Trademark Office; we'll soon see if Joe Biden "means business" or simply means monopoly/large corporations (and their law firms/departments)



  3. Data Point: GNU/Linux Share in Desktops/Laptops Nearly Tripled in the Past Decade, Peaking This Past Month (All-Time High)

    Contrary to what some publishers try to tell us, GNU/Linux is still growing and mostly at the expense of Windows



  4. IRC Proceedings: Saturday, January 23, 2021

    IRC logs for Saturday, January 23, 2021



  5. Links 24/1/2021: Nouveau X.Org Driver Release and GhostBSD 21.01.20

    Links for the day



  6. InteLeaks – Part XXX: Harbor Research's Pseudo-scientific 'Research' for Intel, Bizarrely Suggesting a Microsoft Partnership for a Domain Largely Controlled or Dominated by Linux

    The full document that Intel paid for and in turn used to justify cracking down on Free software (obliterating Free software-based workflows inside Intel), instead outsourcing all sorts of things to proprietary software traps of Microsoft



  7. Chromium and Chrome Are Not Free Software But an Example of Microsoft-Fashioned Openwashing Tactics

    It's time to reject Google's Web monopoly (shared with other companies but still an oligopoly); removing its Web browser would be a good start



  8. Links 23/1/2021: Chromium Pains and New Debian Maintainers

    Links for the day



  9. InteLeaks – Part XXIX: Harbor Research Did Not Produce a Study But an Elaborate Hoax for Intel, Suggesting Microsoft Partnership and Outsourcing Based on Zero Evidence and No Solid Rationale

    The pseudo-scientific ‘report’ from Harbor Research is more of the same nonsense we’ve grown accustomed to; unethical if not rogue firms are being paid to lie — or to perpetuate falsehoods which someone stands to gain from



  10. Video: The State of Communities Surrounding GNU/Linux Distributions

    A discussion about the state of volunteer efforts going into the development, maintenance (in the 'maintainership' sense) and support/advocacy of GNU/Linux distros



  11. IRC Proceedings: Friday, January 22, 2021

    IRC logs for Friday, January 22, 2021



  12. InteLeaks – Part XXVIII: Intel Served Report From Microsoft Boosters, Who Provide No Actual Evidence and No Science to Back Their Supposed 'Findings'

    Findings and recommendations from Harbor 'Research' aren't based on any scientific methods, just perceived loyalty, branding, and a bunch of unsourced quotes (from unnamed people with ridiculous job titles like a soup of buzzwords)



  13. Erosion of Communities, Ascent of Corporate-Industrial Fake Communities

    Despite the attempts to manipulate/trick developers (and sometimes users) into becoming unpaid workforce of for-profit companies, there's an exodus back to real communities, which aren't subjected to the fury of wealthy shareholders who utterly dislike or simply don't care for software freedom



  14. The Corporate 'Left' and the Open Source Pseudo 'Movement'

    President Biden may not be as bad as his predecessor, but that hardly means very much; software freedom is still threatened, along with many other things



  15. Links 22/1/2021: pfSense Plus, Endless OS Foundation, and Many Laptops With GNU/Linux

    Links for the day



  16. The Linux Foundation is Trying to Obscure Racism Using Microsoft-Inspired Tactics (Vouchers Disguised as Actual Money)

    The Linux Foundation and its PR stunts don’t help combat racism; one might argue that the Foundation is leveraging racism, which prevails in the US, to paint itself as benevolent and caring (offering immaterial things and self-serving press releases)



  17. InteLeaks – Part XXVII: 'Pulling a Nokia' on Intel (Outsourcing to Microsoft)

    The recommendation of an Intel marriage with Microsoft (even in units that deal mostly with Linux) is an insulting slap across the face of developers employed there; we take a look at recommendations made to IoTG (Intel) by a firm with Microsoft orientation



  18. IRC Proceedings: Thursday, January 21, 2021

    IRC logs for Thursday, January 21, 2021



  19. InteLeaks – Part XXVI: Harbor Research is Horrible 'Research', Lacking Actual Technical Background

    Having looked at the members of staff of Harbor Research (individually), it seems clearer now why they have an affinity for Microsoft and why they're directing Intel to liaise with Microsoft and become a prisoner of Microsoft (even in areas where Microsoft is increasingly irrelevant)



  20. Links 21/1/2021: Raspberry Pi Pico, Ubuntu 21.04 Picks GNOME 3.38, KDE Plasma 5.21 Beta

    Links for the day



  21. How a Newly Inaugurated President Biden Can Advance Software Freedom (If He Actually Wishes to Do So)

    Techrights has 'Four Suggestions' to President Biden, the 46th 'front end' of American plutocracy



  22. InteLeaks – Part XXV: Intel's Brain Drain Leads to Unusual Measures

    As the company once known as 'chipzilla' loses its relevance and dominance in the market it's reaching out to retired people, trying to get them back onboard



  23. Hey Hi (AI) is Just a Trojan Horse for Illegal Software Patents, According to EPO Management and Litigation Firms It's in Bed With

    The longtime pushers or the lobby of patent profiteers just carry on pushing for software patents, nowadays latching onto the inane and unwarranted media hype around Hey Hi (AI) — a hype wave that was co-opted by EPO management to grant unlawful patents



  24. The Central Staff Representatives (CSC) of the EPO Are Petitioning to End the Assault on EPO Staff

    The EPO, just one month after the staff went on strike, is about to receive a compelling petition to stop the assault on EPO staff



  25. InteLeaks – Part XXIV: Love for Microsoft, Not for Free Software or Whatever Replaces Microsoft

    Intel is basing its big decisions on buzzwords and firms that master buzzwords; it's sad that instead of listening to Intel's own (in-house) engineers it's relying on a bunch of clowns who push 'Clown Computing' and 'apps' and 'UX'...



  26. IRC Proceedings: Wednesday, January 20, 2021

    IRC logs for Wednesday, January 20, 2021



  27. Links 21/1/2021: Google Tightens the Screws on Chromium, VideoLAN VLC 3.0.12

    Links for the day



  28. IBM Panics and Resorts to 'Customer Retention' Tactics With Red Hat Enterprise Linux (RHEL)

    IBM 'frees' RHEL but with limitations that can restrict growth of small companies (or subject them to financial barriers, originally unforeseen)



  29. Recent Techrights Articles About President Joe Biden

    Instead of writing yet more stuff about the latest US president, let's look back at what we wrote in recent weeks/months



  30. Links 20/1/2021: LibreOffice 7.1 RC2 and the RHEL Contingency

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts