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Head of the USPTO is Confused, Defends Software Patents and Patent Trolls

Posted in IBM, Patents at 11:06 am by Dr. Roy Schestowitz

David Kappos

No change, just a lot of words

Summary: The head of the USPTO, David Kappos (above), speaks about the system he now has a lot of influence over. With a fine-tooth comb, the FFII’s president runs through his words.

THE COMPANY behind silent PR and silent lobbying for software patents has had one of its people arrive at the USPTO’s throne while another created the OIN, which in some sense legitimises software patents (it is a double-edged sword, but not so much for IBM). IBM is in favour of software patents because it has so many of them. Kappos himself belongs in the patent lawyers community, those who are leeches to software developers, they are very rarely developers themselves.

“The open source development model is absolutely fantastic,” says Mr. Kappos in this interview, but it goes downhill from there. Let us see how it starts:

Mm hmm. Yes. Software innovation in the open source area has been wonderful, and it has been a breakthrough business model. And great pieces of software, like the Linux operating system, as an example, have revolutionized much of what we do and are the basis for much of our computing on the Internet. The open source development model is absolutely fantastic.

Right. And what’s incompatible with this business model? That’s right, software patents. So it gets ruined from there on whenever Kappos talks about patents. The FFII’s president (Benjamin Henrion) did a fine job picking out the bits where he falters, such as the point where he says:

No matter what the field, whether it’s biotechnology or mousetraps or wheels, gears and sprockets, software

These are entirely different things. Why even lump them together? As Henrion explains:

Kappos uses the hardware equivalence to make software patentable

Henrion adds that according to “Kappos: [it] certainly does not discriminate against any model of software development so that the marketplace can decide” (really?).

“Kappos thinks patent trolls are OK,” Henrion writes, “companies that buy and assert patents are essentially market-making mechanisms” (he must be joking or he is very thick, but it’s likely that he is neither of those things).

“He is probably surrounded by persuasive lawyers, not truly practising staff — those who are busy making actual products, not writing patent applications.”As long as the USPTO is run by a bunch of lawyers with vested interests (like Kappos with his loyalty to a software patents supporter, IBM), all that this US government supports is a small set of mega-corporations sustaining law which is, by design, discriminatory towards the population at large (see the video below).

To end with a quote from Henrion, “Kappos: so I actually don’t see any sort of major change in the area of software patenting” (amazing nonchalance!). IBM could use some prodding and so could Kappos, who has a blog where people who read Techrights can speak to him very easily and directly, hopefully politely speaking some sense into his mind. He is probably surrounded by persuasive lawyers, not truly practising staff — those who are busy making actual products, not writing patent applications. We never insulted Mr. Kappos and in fact we supported his appointment at the time, falsely believing that this was the man who would bring positive change. He failed us all very, very badly.

Professor Lessig, a shrewd American who opposes maximalists of so-called “IP”, gave the following topical talk some days ago (TinyOgg will indefinitely terminate within 4 days, so we apologise for Flash-only video).

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  1. saulgoode said,

    July 12, 2011 at 7:53 am


    So the light bulb, your Edison example, is a great example of a famous invention, the product of human creativity in the sciences and the useful arts, and something that the government then rewards a limited exclusive right to for a limited period of time in exchange for disclosing how that thing is made, how it works, so that humanity can benefit from it for all of time, and other human beings can then build on it and create future great advances.

    Thomas Edison’s patenting of the incandescent light bulb is indeed a “great example”; a great example of how the U.S. PTO mistakenly granted a patent 1879 — to the great cost of the courts, and with undue restriction of competition and stagnation of progress — only to later invalidate that very patent less than four years later in 1883.

    Yes, the patent office’s chief administrator’s “great example” of how the patent system is purported to work is instead yet another shining example of how it utterly fails to actually do so. Such a display of ignorance in the very field for which Mr Kappos is presented as an authority is shameful, to say the least.

    Dr. Roy Schestowitz Reply:

    Yes, well. they always have that “Edison invented the lightbulb” mythology to keep us deluded. Edison was not an American hero, he was an American businessman.

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