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

Abuse Inside the Polish Patent Office (UPRP) - Part IX: Minimum Wages For You (Experienced Scientist), Alicante/EU Paydays For Me (Unproductive, Corrupt Official)
Does UPRP maladministration extend to the false belief that qualified and experienced scientists can play the role of circus clowns?
"The Liberating Power of Simply Telling People the Truth."
'polite' bullying
Who Imitates Who? Plagiarist as Client (From Microsoft), 'Plagiarism' at the Law Firm?
let's revisit the subject
EPO's Central Staff Committee (CSC) Scrutinises the Man Who Illegally Grants (and Forces Others to Illegally Participate in Granting) Software Patents in Europe
EPO compels examiners to break the law in the name of obeying illegal "rules" or "orders"
The Latest Rumour Says The Next (as Correctly Predicted Before) Wave of Layoffs at Microsoft is 3 Weeks Away, "Larger Than the First Wave"
Step 2
TV Licensing Used to SPAM Your Postbox, Now It Does the Same to E-mail
First they ask for your E-mail address; then they start nagging you via E-mail
Our Priority is Still Tackling Software Patents and Corruption in Patent Offices
Meanwhile we got compliments on our recent articles, which means that they are effective
Slopwatch: Another Day, Another Slopfest, LLM Slop Scrapers Slow Down Our Site
We too have some slop issues; this past day this site and the sister site had to answer about 2.5 million requests (not counting Gemini Protocol) and it's slowing things down for everybody
 
Links 12/06/2025: Portland Homeless Deaths Quadruple, COVID Cases Surge in Asia
Links for the day
EPO's Gareth Lord Asked About "Quality and Productivity" or, Put Another Way, Why the EPO Keeps Granting So Many Invalid/Illegal Patents
letter to Lord
The Toxic Playbook
Either you support Prince Mohammed bin Salman or you're a nazi
It's Possible That BetaNews Got Cracked, But Nobody Talks About It, The Site Contains an Outdated Old Image, No Activity
It's possible that they will never explain what happened to the site and users' accounts
Links 12/06/2025: Beach Boys’ Brian Wilson Dies
Links for the day
Gemini Links 12/06/2025: Video Game Diegesis and Steam Next Fest
Links for the day
Why the Militants Have Lost Every Battle Since 2022 (When Attacking My Wife and I in Various Ways, Even Attacking Our Employers)
This takes patience, sure, but at the end most evildoers face the consequences for their actions
Politics Will Impact Software Choices
Will those systems respect users' freedom?
EPO: Neglecting Children to Promote American Monopolies by Shielding Them From European Competition
Yesterday the Central Staff Committee at the EPO spoke about another "reform" at the Office
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 11, 2025
IRC logs for Wednesday, June 11, 2025
Links 11/06/2025: More Vulnerabilities Found in 'Smart' Phones, China Extends Reach in the Pacific
Links for the day
Gemini Links 11/06/2025: Grain and Steam Next Fest
Links for the day
Links 11/06/2025: "Quantum" Hype From IBM, US Closer to Martial Law, and “The Nation” Celebrates Milestone
Links for the day
IBM's CEO Roasted, Sizzled and Grilled for Dumb and Inconsistent Vapourware Promises
It looks like being a chronic liar is what it takes to lead the company once synonymous with computing
IBM's Goal Is Not (and Never Was) Computer Users' Freedom
More than 1.5 decades ago I found IBM to be an "ally of convenience" because of OpenDocument Format (ODF)
Wayland Shows the IBM/Red Hat Way of Doing Things
IBM is trying to 'kill' X
GitHub is Proprietary, Controlled by Microsoft, and GPL Violation Warehouse
"IRS tax filing software [will be] released to the people as free software" ... In general this is good news
Slopfarm Catastrophe
Seems like BetaNews (or BetaNoise) has just suffered a major data loss and restored the site from a week-old backup
Abuse Inside the Polish Patent Office (UPRP) - Part VIII: Illegal Working Conditions
How many people need to die for these people to get their massive salaries?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 10, 2025
IRC logs for Tuesday, June 10, 2025
Links 10/06/2025: Apple Hype and Physical Attacks on Bloggers
Links for the day
Gemini Links 10/06/2025: Loon Lake, Farming, and Forth
Links for the day
Links 10/06/2025: Jaws at 50 and US Democracy Crushed Very Rapidly (Martial Law Seems Imminent)
Links for the day
Abuse Inside the Polish Patent Office (UPRP) - Part VII: Washing Their Hands After Corruption and Abuse
"Tragedy or comedy?"
Culling Bad RSS Feeds of Bad Sites
Not throwing out the baby with the bathwater
If 'Microsoft v Techrights' is Dealt With by a 'Microsoft Court' (or a Court Outsourced to Microsoft)
More on that later
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 09, 2025
IRC logs for Monday, June 09, 2025
Gemini Protocol Turns Six in 10 Days From Now
If you haven't tried it yet, then give it a go today
Live as You Preach
technology is fast becoming dysphoric