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

The Aim is Not Fame
Reposted from schestowitz.com
SLAPP Censorship - Part 114 Out of 200: Thousands of Long Articles to Come, Properly Covering the SLAPP Industry in the UK and Its Modus Operandi
"Stowell described SLAPPs as ‘a stain on our legal system’."
Chad's Move to GNU/Linux or the Point of Exceeding 5% "Market Share"
experienced centuries of being colonised
GAFAM is Drowning in Debt, GAFAM is Clearly Not Sustainable Anymore (It Runs on Borrowed Money and Bailouts)
The war and surrender in Iran will deepen the debt; we'll see the GAFAM reports in late July
Microsoft at 50 Follows the General Trajectory of Skype
How many years does Microsoft have left before payroll becomes impossible?
Cybersecurity Does Not Mean Asking Microsoft for Permission to Boot
There were very good and timely reasons to speak about the matter, including impending antitrust complaints against Microsoft
 
Links 22/06/2026: "The Sycophancy Machine" and "Port 22 Open for 54 Days"
Links for the day
When People Who Make the Most Money Are the Best "Boot Lickers" (Sucking Up to Jeffrey Epstein's Circle and the Dictator)
Sucking up to rich people may pay off
"Internally Important, Externally Irrelevant": IBM in a Nutshell
Right now its debt spins out of control and its stock spirals down the drain
Finding a Way to Get Paid to Improve LibreJS
So now we have more people resurrecting LibreJS and improving it
Microsoft Can't Even Wait Until July, Shutdowns and Layoffs Already Happening
Mashable speak of "a grim picture for the state of Xbox."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 21, 2026
IRC logs for Sunday, June 21, 2026
Gemini Links 22/06/2026: Appreciating Simple Things, Perfect Summer Evening, IRIX, Vim and so
Links for the day
Gemini Links 21/06/2026: Dating Oaks, Paying With Cash, and "More on Withered Technology"
Links for the day
GAFAM Was Never an Ally to Europe
Only 1 in 10 Europeans see US as an ally — study [...] military providers in "tech" clothing cannot be trusted
GitHub, LinkedIn, and XBox Will Finish Like Skype (Sustainability Crisis)
Skype should become a verb. When Microsoft 'Skypes' something it means it basically shuts it down with some temporal excuse/s.
Drowning in Garbage: AUR Shows That Too Much Low-Quality Software (Including Slop) is Bad for Everybody
What happened in AUR had happened elsewhere before and will happen again in the future
Links 21/06/2026: EU on Patented (Monopolised) Crops, Microsoft Software "Narcs on You to Your Boss"
Links for the day
A Year After a Microsofter Took Over The Register MS It is Effectively a Content Farm With News as a 'Side Dish'
This is not journalism, this is spam
IBM Pays the Media and Cons Some 'Journalists' Into Participating in "Quantum" Spam
"The Boy Who Cried Wolf"
You Don't Need an 'App' for Your Birdhouse (Slopfondlers Come for Birds)
That they sell those things as "AI" really says a lot about how dishonest slopfondlers really are
SLAPP Censorship - Part 113 Out of 200: The United Kingdom is Not Turkey
Turkey is ranked almost worst in the Western World for press freedom
Links 21/06/2026: Bots from Alibaba Do Harm and Many Xbox Games Are Being Cancelled
Links for the day
5 Years After Release of Vista 11 Not Even One in 5 People Use It (in the US)
It doesn't look like Vista 11 will ever be adopted like prior versions and announcing a Vista 12 will mostly upset companies/organisations that only recently "upgraded" to 11
Gemini Links 21/06/2026: Boca Raton, Perfect Summer Day, and LLM Doing Things Poorly
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 20, 2026
IRC logs for Saturday, June 20, 2026
Microsoft Insiders - Not Limited to XBox - Expect a 'Bloodbath' (Their Own Word)
This isn't limited to XBox
Reports of "PIP" as Means of Mass Layoffs at IBM This Year
some insights into the PIPs
SLAPP Censorship - Part 112 Out of 200: Strangles Women, Then Refuses to Even Attend Any of His Own Hearings About It
It is meanwhile very apparent that Brett Wilson LLP is becoming a "mench sphere"
Gemini Links 20/06/2026: "There Was Never Supposed to Be a Camera" and "What Is A Programming Language"?
Links for the day
Geminispace Reaches Its 8th Year, Today It Has Turned 7
Gemini Protocol 'went live' 7 years ago, just before the COVID-19 pandemic
Links 20/06/2026: "Full Page Paralysis" and "Hopes For Xbox’s Future Might Be Over Before It Even Begins"
Links for the day
European Patent Office's (EPO) Strikes "at a Scale not Seen Since Battistelli", European Patent Grants Down by Over 25% in Past 3 Months
The actions are effective
Real Security Elusive, Microsoft Layoffs to Coincide With Certificate Apocalypse
July 1
Links 20/06/2026: Microsoft's "Year of Shame" and "Feed the Writers"
Links for the day
2026 is a Year of Strikes at the European Patent Office (EPO)
As it stands at the moment, to many people the EPO represents crime, not law
Web Browsers Are Technically Bloatware (No Matter What Runs in Them)
Don't make it a society that shames people into using a Web browser where none should be needed
Fedora Has Changed a Lot Since I Last Used It (IBM Dominates Almost Everything, IBM Agenda Displaces Community Goals)
"It is effectively 100% run by Red Hat/IBM employed people... even when they are community-elected representatives."
Andy (Cyber Show) on His Teacher Who "Squeezed Every Last Drop Out of Life, With Gratitude, Humility, Generosity and Mettle"
Some call them "eccentric" and are dismissive about what they have to offer
Only 1.5% Oppose the European Patent Office's (EPO) Strikes and Other Industrial Actions Until 2027
Among those polled/surveyed (in a ballot)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 19, 2026
IRC logs for Friday, June 19, 2026
Gopher/Gemini Links 20/06/2026: Slop With Tcl/Tk and Nokia 770 Perishes
Links for the day