Bonum Certa Men Certa

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

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.

Recent Techrights' Posts

Links 05/09/2026: "Let’s Stop Buying New Phone" and 'Open' 'AI' (Proprietary Slop) Drowning in Lawsuits
Links for the day
Gemini Links 05/09/2026: Polarization, Warped Maps, and Emacs rectangle-number-lines
Links for the day
Software Freedom, Even If Difficult to Attain Due to Outside Pressure, Does Make You Happier
Peer pressure and opinionated employers can make friends and staff more miserable if they dictate bad software
You Can Run GNU/Linux on a Desktop/Laptop for 1,000+ Days Nonstop
To me, the long uptime is a way of "marketing" GNU/Linux as robust and stable
Profiting From Global Warming (and Making More Money the More You Cause Warming)
Unregulated bank and pyramid scheme
SLAPP Censorship - Part 172 Out of 200: The Solicitors Regulation Authority (SRA) Complicit in the SLAPPs by Inaction (Didn't Even Study Any Evidence, Only Wasted Time and Budget)
"SRA placed into special measures due to 'disappointing standard of leadership'"
China Does Not Need American (US) Products Like GAFAM's
China has abundance of technical things it can leverage to preserve its autonomy
RMS Didn't Make Enough Backups
Making backups is important
Refresher: Why EPO Staff is on Strike This Year (Aside From the EPO Acting Like a Corrupt, Above-the-Law, For-Profit Corporation That Violates Its Own Charter)
One core issue at the EPO is erosion of purchasing power
Gemini Links 05/09/2026: Fireflies, Shore Pine, and ASCII Art
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, September 04, 2026
IRC logs for Friday, September 04, 2026
The Legal Services Board (LSB) Takes on Solicitors Regulation Authority (SRA) for Utter Failures, We'll Resume Our SRA Series to Illuminate How Bad the SRA Really Is
a quick overview of the latest news
Links 04/09/2026: Notorious Patent Trolls' Judge Enters the Private Sector (Corruption, Revolving Doors), Gloria Steinem's Life in Pictures
Links for the day
Gemini Links 04/09/2026: Worries, Upgrades, and CS Students
Links for the day
Richard Stallman's Web Site Back Online, But It Seems Like a 2-Months-Old Snapshot
Latest political notes are dated July 2 (2026)
SPAM Disguised as Benchmark or Comparison: The Register MS "PARTNER CONTENT" is Getting Weirder by the Month
Sites that promote fake 'coins' or pyramid schemes to their audience(s) aren't worth tolerating
PIPs at IBMs are Layoffs Because They're Impossible to Satisfy (or They Terminate Workers Despite Satisfying Them)
What insiders say
In the United Kingdom You Can No Longer Make the Assumption People Use Windows (or 'Smart' 'Phone')
As autumn arrives Microsoft faces a crisis
SLAPP Censorship - Part 171 Out of 200: Talking About Corruption and Violence Against Women
Today the Labour Party (UK) speaks about corruption
Warming Up for Investigative Journalism About the European Patent Office (EPO), Europe's Second-Largest and Probably Most Corrupt Institution in Europe
It continues to exploit diplomatic immunity for impunity
Microsoft Handing Out PIPs by the Thousands, Anxiety in GAFAM Building Up
Years ago I heard from people who pretended to be ill to avoid getting fired
BRICS in the Windows: Brazil's GNU/Linux Share (as Measured by CDN) Has Hit Highest Point in a Month
The largest Web CDN, Clownflare, sees GNU/Linux at 8.1% right now in Brazil
Corporate Media Will Always Glorify Its Owners (Corporations That Value Nothing But Capital)
Collecting "money" like it's a form of competition where they track "score"
We'll Never Do Slop!
Being against slop is not being "left behind"
Thieves Complain About the People They Steal From
"When you point the finger at someone, there are three fingers pointing back to you"
Links 04/09/2026: "The Rise of the Billionaire Lobby", the "Imperialist Delusions", and Digital Restrictions (DRM) From Nvidia
Links for the day
Buying From China
Nations must begin to speak about their digital sovereignty, which Free software is best equipped to grant and best positioned to assure in the face of outside resistance
GNU/Linux Continues to Grow in China
GNU/Linux reached its highest point in a month
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, September 03, 2026
IRC logs for Thursday, September 03, 2026
Gemini Links 04/09/2026: Forgotten Realms Avatar Series and Slop Plagiarism's Footprint in Gopher/Geminispace
Links for the day
Like Uber, Paypal's Debt Has Shot Up 2.5 Billion Dollars in 3 Months, Now the Mass Layoffs Come to India
even reducing the salaries by offshoring isn't enough to save the company
IBM Eliminating Over 20,000 IBM Workers by Year's End, Insiders Claim
the layoffs are silent
Microsoft "engineers who aren’t critical are let go" this week/month (silent layoffs)
"stack ranking"
Is Microsoft Trying to Kill What's Left of XBox by Year's End?
How many people will still bother purchasing these consoles by the end of the year?
SLAPP Censorship - Part 170 Out of 200: Downtimes
Yesterday traffic skyrocketed here
The Register MS Publishes More Word Salads Promoting "AI" Because It's Paid to Do So
Hype, name-dropping, and scaremongering
Gemini Links 03/09/2026: Google Maps, Gemini's Early History, and Suppressing Slop Plagiarists
Links for the day
Links 03/09/2026: Unsafe Skies, Thunderbird Adopts Proprietary / Vendor Lock-in Traps, "Xbox Live Down Again"
Links for the day
Growing Thirst for Free Software, the LibreOffice Edition
LibreOffice is in "high demand"
Links 03/09/2026: John Ternus Enters Apple Amid Mass Layoffs, Journalist İrem Delice Arrested
Links for the day
Stallman.org Down Due to Virtual Machines Issue, "Senior Engineers are Investigating the Issue" Since Saturday
RMS site down due to virtual machines issues upstream
Linux Foundation is Plagiarism Hub, Linux is at Risk From It
Torvalds never looked weaker and more compromised
Gemini Links 03/09/2026: Back in Japan, Another New Year, Reasons to Avoid Have a "Smart" "Phone", and Rant About Built-in Batteries
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 02, 2026
IRC logs for Wednesday, September 02, 2026