04.01.16

Gemini version available ♊︎

David Kappos Whines About the Supreme Court Shutting the Door on Many Software Patents

Posted in America, Europe, IBM, Law, Microsoft, Patents at 4:10 pm by Dr. Roy Schestowitz

From USPTO Director to Lobbyist for Patent Maximalism and Software Patents?

Fordham IP Conference
No comment necessary

Summary: Reports from the Fordham IP Conference serve to show nefarious bias which serves not only patent lawyers and their large clients (like Microsoft or IBM) but also software patents (which Microsoft and IBM have turned into their business model as sales continue to nosedive)

THE Fordham IP Conference (i.e. stuffed and/or staffed with lawyers, no public interest representatives) has just ended and there was material in it which related to the EPO, the UPC, and software patents in Europe (to be covered separately). Unless you are very wealthy, you’re unlikely to have been able to attend and unless you are a patent maximalist, you wouldn’t have had a chance to speak there (just listen). It’s an echo chamber, a meeting behind closed doors (almost), a conspiracy or a think tank (to put it politely). It’s one of several such events (in big and overpriced cities) which are efforts to collectively shape the law and influence policy. Output/reports are like a think tank’s bit of “research”. Dissenting voices are not allowed, let alone invited to offer input.

“It’s one of several such events (in big and overpriced cities) which are efforts to collectively shape the law and influence policy.”Right now software patents in Europe are a big deal because the US basically pushes back against such patents, much to the chagrin of patent lawyers who profited from them (usually at the expense of programmers like myself and millions of others).

David Kappos, formerly of USPTO and IBM (now increasingly notorious for aggression with software patents), is acting as though he’s above a Supreme ruling or as if SCOTUS is wrong (because of his own financial interests). One must recall what Kappos did after leaving the USPTO (now a patent profiteering person, who is still pushing for software patents).

“David Kappos – not a fan of the Supreme Court’s decisions on section 101,” says the caption below his face. We will cover the latest developments regarding section 101 some time in the weekend.

According to this outline of the event, composed by a proponent of software patents, Alice upsets Kappos:

In terms of Supreme Court decisions, especially the CLS v Alice Bank decision, David said that it is impossible to make sense of the Supreme Court jurisprudence on section 101. In trying to make sense of section 101, the PTO is trapped by a set of Supreme Court decisions which are incomprehensible. That is has been the architect of PTO’s real struggle to get to grips with patentable subject matter. Judge O’Malley agreed that it is difficult to understand what is and is not left in terms of patentable subject matter, but this challenge has led to many more creative arguments from lawyers who try to distinguish their inventions from the realm of a CLS v Alice Bank situation. Sir Robin chimed in stating that in the real world the patent office does issue bad patents – it is inevitable This is because its a one-sided examination process conducted by an examiner who may not have all of the prior art before him or her and who is generally under-resourced. You can see this in Europe where an opposition takes 10-15 years to decide whether a patent is valid. This is a broken system. The America Invents Act, to Sir Robin, looks great in comparison as it provides a quicker, more efficient regime to address validity. It also provides certainty, which is hugely important.

David agreed about the inevitably of some patents being wrongly granted. In particular, this is an issue when an examiner is being asked whether an invention is abstract – that very question is entirely subjective and, as Sir Robin noted, in such a situation of course wrongly granted patents will be inevitable.

Michael Loney, who went to New York to cover this event for MIP, wrote about the role/input of Kappos as follows:

David Kappos who, (as Hansen says) everyone knows, has 10 priorities for whoever is the next US president:

Innovation = action, progress, leadership
US must resume its role as world leader in innovation
Federal government will lead in championing and rewarding innovation
Government needs to recognise innovators need incentives
Patent system is our system for incentivising innovation – we need a strong patent system
Administration should not shy away from leadership in tuning patent system, from a position of strength
Curtail abuses, but with the view that the benefits of patents far outweigh occasional misuses
Patent system must take precedence in conflicts with other systems of law, especially antitrust law
We will favour creation of new technologies and dynamic competition not protecting status quo (as antitrust law does)
Patent system is enshrined in the constitution because innovation is about exalting what’s next not what’s now.

In the Q&A, he says he feels the current (Obama) administration, in its second term, has not been as supportive of patents as it was before or should be.

It would be a lot nicer if Kappos just stayed out of policy and didn’t contribute to the impression that patent lawyers and patent aggressors such as IBM steer policy in their favour, such that money (billions of dollars) is passed into their pockets without them lifting a finger. They self-discredit their firms and also discredit this system as a whole. It’s no better than what we find in ISDS (e.g. in TTIP/TPP) or ACTA, but there’s less public outrage because few members of the public ‘grok’ patent law.

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

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Links 03/02/2023: OpenSSH 9.2 and OBS Studio 29.0.1

    Links for the day



  2. Links 03/02/2023: GNU C Library 2.37

    Links for the day



  3. Sirius Finished

    Yesterday I was sent a letter approving my resignation from Sirius ‘Open Source’, two months after I had already announced that I was resigning with immediate effect; they sent an identical letter to my wife (this time, unlike before, they remembered to also change the names!!)



  4. The Collapse of Sirius in a Nutshell: How to Identify the Symptoms and Decide When to Leave

    Sirius is finished, but it's important to share the lessons learned with other people; there might be other "pretenders" out there and they need to be abandoned



  5. Links 03/02/2023: WINE 8.1 and RapidDisk 9.0.0

    Links for the day



  6. Links 02/02/2023: KDE Gear 22.12.2 and LibreOffice 7.5

    Links for the day



  7. Linux News or Marketing Platform?

    Ads everywhere: Phoronix puts them at the top, bottom, navigation bar, left, and right just to read some Microsoft junk (puff pieces about something that nobody other than Microsoft even uses); in addition there are pop-ups asking for consent to send visitors’ data to hundreds of data brokers



  8. Daily Links at Techrights Turn 15, Time to Give Them an Upgrade

    This year we have several 15-year anniversaries; one of them is Daily Links (it turned 15 earlier this week) and we've been working to improve these batches of links, making them a lot more extensive and somewhat better structured/clustered



  9. Back to Focusing on Unified Patent Court (UPC) Crimes and Illegal Patent Agenda, Including the EPO's

    The EPO's (European Patent Office, Europe's second-largest institution) violations of constitutions, laws and so on merit more coverage, seeing that what's left of the "media" not only fails to cover scandalous things but is actively cheering for criminals (in exchange for money)



  10. European Patent Office Staff Votes in Favour of Freedom of Association (97% of Voters in Support)

    The Central Staff Committee (CSC) at the EPO makes a strong case for António Campinos to stop breaking and law and actually start obeying court orders (he’s no better than Benoît Battistelli and he uses worse language already)



  11. Links 02/02/2023: Glibc 2.37 and Go 1.20

    Links for the day



  12. IRC Proceedings: Wednesday, February 01, 2023

    IRC logs for Wednesday, February 01, 2023



  13. Links 01/02/2023: Security Problems, Unrest, and More

    Links for the day



  14. Links 01/02/2023: Stables Kernels and Upcoming COSMIC From System76

    Links for the day



  15. IRC Proceedings: Tuesday, January 31, 2023

    IRC logs for Tuesday, January 31, 2023



  16. Links 31/01/2023: Catchup Again, Wayland in Xfce 4.20

    Links for the day



  17. Links 31/01/2023: elementary OS 7

    Links for the day



  18. Intimidation Against Nitrux Development Team Upsets the Community and Makes the Media Less Trustworthy

    Nitrux is being criticised for being “very unappealing”; but a look behind the scenes reveals an angry reviewer (habitual mouthpiece of the Linux Foundation and Linux foes) trying to intimidate Nitrux developers, who are unpaid volunteers rather than “corporate” developers



  19. Links 31/01/2023: GNOME 44 Wallpapers and Alpha

    Links for the day



  20. Free and Open Source Software Developers' European Meeting (FOSDEM) and KU Leuven Boosting Americans and Cancellers of the Father of Free Software

    The Free Software Foundation (FSF) and its founder, Richard M. Stallman (RMS), along with the SFLC one might add, have been under a siege by the trademark-abusing FSFE and SFC; Belgium helps legitimise the ‘fakes’



  21. Techrights in the Next 5 or 10 Years

    Now that I’m free from the shackles of a company (it deteriorated a lot after grabbing Gates Foundation money under an NDA) the site Techrights can flourish and become more active



  22. 60 Days of Articles About Sirius 'Open Source' and the Long Road Ahead

    The Sirius ‘Open Source’ series ended after 60 days (parts published every day except the day my SSD died completely and very suddenly); the video above explains what’s to come and what lessons can be learned from the 21-year collective experience (my wife and I; work periods combined) in a company that still claims, in vain, to be “Open Source”



  23. IRC Proceedings: Monday, January 30, 2023

    IRC logs for Monday, January 30, 2023



  24. Taking Techrights to the Next Level in 2023

    I've reached a state of "closure" when it comes to my employer (almost 12 years for me, 9+ years for my wife); expect Techrights to become more active than ever before and belatedly publish important articles, based on longstanding investigations that take a lot of effort



  25. The ISO Delusion: When the Employer Doesn’t Realise That Outsourcing Clients' Passwords to LassPass After Security Breaches Is a Terrible Idea

    The mentality or the general mindset at Sirius ‘Open Source’ was not compatible with that of security conscientiousness and it seemed abundantly clear that paper mills (e.g. ISO certification) cannot compensate for that



  26. Links 30/01/2023: Plasma Mobile 23.01 and GNU Taler 0.9.1

    Links for the day



  27. EPO Management Isn't Listening to Staff, It's Just Trying to Divide and Demoralise the Staff Instead

    “On 18 January 2023,” the staff representatives tell European Patent Office (EPO) colleagues, “the staff representation met with the administration in a Working Group on the project “Bringing Teams Together”. It was the first meeting since the departure of PD General Administration and the radical changes made to the project. We voiced the major concerns of staff, the organization chaos and unrest caused by the project among teams and made concrete proposals.”



  28. Links 30/01/2023: Coreboot 4.19 and Budgie 10.7

    Links for the day



  29. IRC Proceedings: Sunday, January 29, 2023

    IRC logs for Sunday, January 29, 2023



  30. [Meme] With Superheroes Like These...

    Ever since the new managers arrived the talent has fled the company that falsely credits itself with "Open Source"


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