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

SLAPP Censorship - Part 94 Out of 200: SLAPP by Garrett's Litigation Buddy Started 20 Months Ago, He Has Not Even Put in His Defence Yet!
This is what happens when one deals with incels and misogynists who promote slop and Microsoft
Gravitating Towards What Your Role in Society May Be (or What You're Truly Good At)
Many IBMers already realise that they spent years if not decades of their lives working on mostly meaningless products/projects
 
Trusting Microsoft is Foolish
Mr. Rossmann says they "gaslight customers" in their Web site, but it goes a lot further than this
Techrights in a Nutshell, in Very Generic Terms
"for dummies"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, May 31, 2026
IRC logs for Sunday, May 31, 2026
Gemini Links 01/06/2026: Buckingham Palace Garden Party, TUI Annoyances, Lateral Thinking with Withered Technology
Links for the day
Links 31/05/2026: Heat Wave Grips France and Edgar Morin Dies
Links for the day
Gemini Links 31/05/2026: Backup vs. Mirror, Year of the Death of a Euphemism, Slop Makes Only Yet Another (Untested) Calculator
Links for the day
IBM Red Hat Has a Long History or Track Record of Misusing Trademarks to Send Lawyers to Try to Take Down Pages and Web Sites of Critics
Red Hat claims to own words; IBM thinks it owns names
Richard Stallman is Coming Back to Bern to Give a Talk Next Month
another big talk coming up
900 Days Later
900 days is a very long time (almost 1,000)
Cybershow Requires Free Software to Record Shows
Cybershow is run by people who understand that without Software Freedom there can be no sovereignty
Losses at Microsoft's GitHub Seem to be Deepening
How many billions of dollars has Microsoft lost by betting on the false prediction that it can somehow "monetise" public code by LLMs?
Links 31/05/2026: Slop 'Code' (Junk) "Increasingly Leads to Production Failures" and "Huge Slop Costs With No Clear Benefits"
Links for the day
European Patent Office Strikes Intensify Tomorrow, Huge Strikes Planned for June, 10,000 Strike Participations Registered
Campinos may well be ousted soon
SLAPP Censorship - Part 93 Out of 200: A Blueprint of Reckless Lawfare in the UK, Waged and Funded by Americans (in Another Continent)
Lawfare powered by slop companies (including Microsoft) from America, targetting British people who consistently oppose slop because it's objectively terrible
Links 31/05/2026: Watershed Moment, Traveller RPG Book Binding, and GUI Annoyances
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 30, 2026
IRC logs for Saturday, May 30, 2026
IBM CEO Can Become a Billionaire by Laying Off Tens of Thousands of Workers (or Buying Companies Using Borrowed Money, Only to Lay off Thousands in Them)
Like he did Confluent recently
Reminder That Linuxiac is a Slopfarm or Hybrid of Bobby and His LLMs
LLM fetishist that claims to cover Linux
BetaNews is Still Publishing Fake Articles, Sometimes Fake News, or LLM Slop Disguised as 'Journalism'
Slop isn't yet a thing of the past, but hopefully we'll get close to that by the end of this year
Gemini Links 30/05/2026: Writer's Block, Evil GAFAM (Google), and Scepticism of Slop
Links for the day
Links 30/05/2026: Fairphone 6, China’s Rise in Drug Development, Slop Wastes Money Without Delivering Value
Links for the day
Links 30/05/2026: Alarm Over Large Companies Cancelling Slop Contracts, Ozzy Osbourne Resurrection as Slop Draws Ire
Links for the day
Red Hat Exodus or RAs (or PIPs) in 2026 Not Limited to China, IBM is Doing Well at Hiding Layoffs
All we need to know is, does IBM hand out lots of PIPs?
SLAPP Censorship - Part 92 Out of 200: A Spouse Cannot be Turned "On" and "Off" Like a Faucet
Today's part will be very short because we keep the parts shorter in weekends and summer is officially around the corner (June on Monday)
The Register MS Has Just Published Fake Article That Mentions "AI" 23 Times. "Sponsored by Arm." It Does This Every Day.
A lot of the time we see this term everywhere in "the news" simply because slop pushers are paying for it
SQLite Under DDoS Attack by Slop Reports or Fake 'Bugs' (Just Like cURL and Many Other Projects)
Even Linus Torvalds is starting to talk about this
IBM: The B Turns From "Business" to "Bailouts" to "Buybacks" ("IBM is the Next Intel")
Trying to shore up the falling share price/stocks while veteran workers and Vice President (with high salaries) are cut off
Links 30/05/2026: More GAFAM (Amazon) Mass Layoffs, Peter Schiff Warns of Trillion-Dollar Slop Bubble Waiting to Implode
Links for the day
Slop is Plagiarism
Trillions of dollars down the drain, invested in a dud
Gemini Links 30/05/2026: Rehabilitation and Taming Emacs Cache and Temporary Files
Links for the day
Richard Stallman (RMS) Talks and Secure Transmission of Private Communications in Formats Everybody Can Access With Free Software
Maybe the FSF should step up a bit the campaign to use Free software to communicate with one another
General Consultative Committee (GCC) Discusses Working Conditions of Employees of the European Patent Office (EPO)
On the agenda: Salary Erosion Procedure, Breastfeeding Policy, New Amicale Framework, Public Holidays 2027
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 29, 2026
IRC logs for Friday, May 29, 2026