Bonum Certa Men Certa

David Kappos Does Not Understand Why the USPTO is Broken

A ring



Summary: The USPTO claims to be working to resolve its problems, but it might only make things worse (patent saturation) rather than better

LORA Bentley from IT Business Edge says that the US patent office is trying to "streamline [the] application process" as though the issue with the office is that it doesn't issue patents quickly enough.

In a Mercury News piece at SiliconValley.com, writer Chris O'Brien details a conversation he had with U.S. Patent and Trademark Office director David Kappos. Even Kappos admits the system is broken. "We are trying to work our way through a broken system," he told O'Brien. The goal is to improve the average time between application and approval from the typical three and a half years (which is how long Facebook waited for approval of its news feed patent) to a single year.


What's broken is scope, not pace or litigation (e.g. amassing damages for collection from several jurisdictions). It sometimes seems as though those who are greedy for more patents, namely lawyers, have hijacked the criticism and the call for a reform. They pretend that the USPTO is broken because it does not issue enough patents. Rather, the office should adjust scope, then the workload will not be an issue and there will be no backlog, either (or a much smaller one). David Kappos, the Director of the USPTO, once complained about "creating a new 20-year monopoly for no good reason." He was referring to patents that should not be granted, so how is streamlining the solution? It's not.

The USPTO ought to look at how a particular class of patents actually advances/hinders science and society, not how it helps protect a company from competition. In separate news, the USPTO ratifies a project that uses free labour (volunteers) to endorse or reject patents. How is that beneficial? Bad patents should just not be allowed in the first place.

The first change is that it looks like the Patent Office is going to open up the patent approval process in a pilot program by allowing for a sort of peer review using evidence of prior art or prior patents to be submitted to disqualify a current patent application filing.


This is not the solution, it's a band-aid on top of a broken system (just follow the symptoms). The USPTO should abolish many types of patents that do nothing to improve science. Software patents are just one example. Early in the week we wrote about Gregory Girard getting arrested. He had a software patent which was used for trolling, as this new article reminds us.

Last year, The Prior Art covered Garrod's side project, an unusual one for a PubPat attorney: he owns a patent-holding company, Bedrock Computer Technologies, which has enforced a software patent by suing several technology companies in East Texas.


Google should also drop its obsession with software patents, which it not only applies for [1, 2, 3] (trivial ideas even) but also harbours in YouTube. The same goes for Facebook, whose latest controversial software patent [1, 2] gives reasons for unrest.

Earlier this week, Scottish blogger and law lecturer Andres Guadamuz accused Facebook of aiming to protect "a trivial use of databases".

"It seems like the software patent standard in the US is so low that all one needs is to get a clever patent attorney to attach a lot of mumbo jumbo to mundane database functions and voila, you are given a patent," he wrote.


Another controversial type of patents would be gene patents. There's a broad spectrum of patents on life and nature; this is ridiculous as not only does it contribute nothing to advancement but it also increases deaths [1, 2]. "Commons Sense" is the title of this new post which is critical of such patents.

One of my recurring frustrations in making my case against gene patents is the failure by some to grasp the argument I am trying to make regarding the nature of "the commons". Perhaps I have been unclear, or maybe the approach I am taking to property law and justice is too far afield from those more frequently made to be immediately understood. Yesterday, however, I gave a guest lecture in an ethics course for ICT students (software programmers, mostly), and gained a lot from the experience. These students not only grasped the argument, but embraced it, and helped to clarify a subtlety that I need to elaborate upon in defining the "commons by necessity" that I believe genes and other parts of the universe belong to.

Briefly, to summarize, I argue that the justice of property rights derives from the logical and practical ability of people to enclose a space, and the need for a rival to use violence to dispossess a possessor of the space. Thus, property rights in land and movables are grounded in these brute facts. There is no such grounding for intellectual property rights. Moreover, there are parts of the universe that cannot be justly owned, and IP claims over these "commons by necessity" are unjust. These are parts of the universe which cannot be held exclusively by anyone, as a matter of brute fact. Examples include: the laws of nature, radio spectra, and genes which are de facto unencloseable. My thanks to Stephan Kinsella who helped me to realize that this applies, actually, to all ideas, and thus makes all IP law a similar incursion on an unencloseable commons by necessity.


Here is an informed opinion about the Eastern District of Texas, where many patent trolls choose to strike.

My friend Sawyer is back with another post in his series of talking about software patent issues. As I mentioned before, Sawyer is a real person named after our intrepid friend in LOST (I haven’t seen it this week – no spoilers please) who has agreed to help us navigate the parallel universe known as software patent land. I’m channeling Sawyer’s points of view as a public service announcement since he’s uncomfortable being named publicly – these are his words, not mine. Today’s post is on the famed “Eastern District of Texas” (EDTX), one of the most popular places in the United States for patent litigation.


To patent trolls, it's simply a matter of loopholes and economics. "How to Cut Your Patent Costs" is the title chosen by this person who described himself as: [emphasis is ours]

Rick Martin is a native of Brooklyn, N.Y. He entered law school at age 38, and now is a patent attorney in Colorado. He founded his firm in 1992 and has written hundreds of mechanical, electrical, and software patents over the past 25 years.


"Patent attorney"... and what has he actually contributed to science?

The USPTO is in serious trouble because lawyers and patent trolls (who are often lawyers) took over this system, which only rewards monopolies and lawyers; neither contributes to the betterment of science and the USPTO is looking to expand granting of monopolies (to use the phrase of Kappos) rather than reduce them. This system is self-defeating in a way.

Comments

Recent Techrights' Posts

Microsofters' SLAPP Censorship - Part 13 Out of 200: Abuse of Process to Make False Accusations of UKGDPR Violations
familiar barrister and same lawyers
What Puts the Brakes on GNU/Linux Adoption on Laptops and Desktops is Monopoly Control (or Monoculture) Over the Distros
Distros that adopt systemd are controlled by IBM and GAFAM
 
2026 Microsoft Layoff Rumours
Surely if we had properly-functioning media, then someone would investigate this rather than rely on official statements from Microsoft and WARN notices
EPO Strike This Week
contact your national representatives about it
Gemini Links 15/03/2026: "Create Opportunities for Good Things to Happen", DOSbook, and Bitcoin Criticism
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 15, 2026
IRC logs for Sunday, March 15, 2026
Pirate Praveen Arimbrathodiyil & Debian denouncing volunteers, hiding romances
Reprinted with permission from Daniel Pocock
Links 15/03/2026: WB Games Montréal Undergoes Layoffs, "Swiss Reject Cuts to Public Broadcasting"
Links for the day
Gemini Links 15/03/2026: Messages in Bottles and Audio Streaming in Lagrange for Android
Links for the day
Thrown Under the Microsoft Bus
Microsoft wants disposable contractors
Quitting IBM and "Rumors of an Upcoming RA [Mass Layoffs] in April 2026"
Blue layoffs or "RAs" were confirmed upfront by the CFO
GNU/Linux Distro Builders Barely Paid Enough to Pay Basic Bills, Chief of "Linux" Foundation (Not Even Using Linux!) Increases His Own Salary by Over 50% in 5 Years
Salaries or compensation correlate with the ability to exploit people, not to create things
The "Zero-Sum" Fallacy
Fallacies like "zero-sum" - especially in the context of foreign affairs including war - are utterly ruinous
A Happy Birthday to Richard Stallman
Richard Stallman will turn 73
Jürgen Habermas is Dead, But the Politicised, Inherently Corrupt, Corporatised Court for Patents That He Inspired Is Not
In the news throughout the weekend
Mountains of Abuses of Process by Brett Wilson LLP on Behalf of Americans and Sometimes at the Expense of British Taxpayers
a virtual "limited liability"
linuxteck.com FUD by LLM Slop, ubuntupit.com Passes the Slop Baton
Unless they get back to doing long-form authentic articles, as opposed to slop, no good will come out of it
Links 15/03/2026: New Shortages, Lynx Populations Depletion
Links for the day
Sruthi Chandran & Debian Diversity, Favoritism, Hidden Conflicts of Interest
Reprinted with permission from Daniel Pocock
software in the public domain
Reprinted with permission from Alex Oliva
Links 15/03/2026: Slop "Bubble Driving Interest in Chip Alternatives" and Wildlife Erosion Reported
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 14, 2026
IRC logs for Saturday, March 14, 2026
Layoffs in Twitter, Facebook, and Microsoft's LinkedIn
There are silent layoffs at Microsoft this month
We Don't Depend on Google and Don't Care for Google
We have our own site search and we don't depend on Google to bring visits/visitors to us
Change of Address at the Hired Guns, Address Removed
Companies tend to alter their 'shell structure' in anticipation of major action
Facebook Layoffs Due to Enormous Debt, Nothing to Do With "Hey Hi" Slop
The lies about "hey hi" in relation to layoffs will only contribute to further public resentment towards: 1) the media and 2) all the slop.
The Good IBM Managers Have Flown Away, All That's Left is the Book-Cooking Loyalists
IBM is just cheating the SEC and shareholders. This seems to be the only thing IBM's management is nowadays good at.
Microsofters' SLAPP Censorship - Part 12 Out of 200: Months Ahead of Serial Strangler From Microsoft Who Helped Double the Lawsuits (Funded by Third Parties) as 'Revenge' for Exposing Crimes
In 2024 I sat down and wrote about what had been done to me and to my wife
Crime Comes in Many Forms
apparently the SRA is OK with stranglers of women in America bullying the media in the UK
commandlinux.com, linuxteck.com, linuxiac.com, and linuxsecurity.com are Slopfarms With "Linux" in Their Domain Name
once readers realise they read slop they immediately lose interest
Links 14/03/2026: Adoption of Slop Has Killed BuzzFeed, Russia Sees "Economic Gain From Iran War"
Links for the day
Patriotism is Conditional, If It's Unconditional, Then It's Like a Cult
My love for Software Freedom is only as strong as my love for Freedom of the Press
Links 14/03/2026: Mass Layoffs at Facebook ('Meta') and Sweeping Layoffs at Twitter (xAI), Social Control Media and Slop Are Only Debt
Links for the day
Wrong Time, Wrong Place (Digg)
Kevin Rose and Alexis Ohanian can relaunch Digg.com, but we doubt it'll work "this time for real!"
Universities Became Bad Places for Work
What happened to academia?
Reporting New and Suppressed Information is What Journalism is All About
In the domain of Free software, there are very few sites out there that offer exclusive coverage on community affairs and there are many gagging/censorship attempts
The Limits of Speech and the Rationale of Limitations
it seems to be part of an international trend
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 13, 2026
IRC logs for Friday, March 13, 2026
Gemini Links 14/03/2026: Goodness, AD534 Multiplier Module, and Extroverts Online
Links for the day