Bonum Certa Men Certa

David Kappos From IBM and the USPTO is Still Lobbying for Software Patents, This Time With a New Glorified 'Paper'

Fueling patent lawyers' propaganda mill, antagonising scientists

“Along with many other computer scientists, I would like to ask you to reconsider the current policy of giving patents for computational processes.

“There are far better ways to protect the intellectual property rights of software developers than to take away their right to use fundamental building blocks.

“I find a considerable anxiety throughout the community of practicing computer scientists that decisions by the patent courts and the Patent and Trademark Office are making life much more difficult for programmers. ”

--Professor Donald Knuth, world renowned algorithms researcher



Summary: The infamous attorney from IBM, who later worked for the 'Intellectual Property' [sic] establishment and became Director of the United States Patent and Trademark Office (USPTO), promotes the fiction that software patents are good for the US, despite them helping patent trolls and monopolies/oligopolies (like IBM)

THERE has been somewhat of a stir and a reaction to this paper in favour of software patents [PDF]. It has, as expected, been promoted by pro-software patents sites (and suffice to say, that practically means patent lawyers' media). There is pushback from people who actually deal with software, including software developers.



"Kappos apparently knows better than the courts what's good for the country."Calls to counter the author, who despite courts' rulings still wants to guard software patents, could be found online, including in IP Watch. Hugo Roy (FSFE) reacts with: "Arguing that the US software market is thriving *because* software is patentable there."

This makes no sense at all, but then again, consider who the author is. It's the former head of the USPTO, who repeatedly pushed for software patents, defended them, arguably expanded their scope, and collectively belittled their critics, just like his former employer (IBM). He is not a scientist but a lawyer or "an attorney" (putting aside a bachelor's degree from over three decades ago). He is current Partner at Cravath, Swaine and Moore, i.e. a law firm. David Kappos is a proponent of software patents, which are falling, failing, burning and crashing after the SCOTUS ruling on Alice. Kappos apparently knows better than the courts what's good for the country. Here is what IP Watch wrote last week:

In a clarion call to policymakers, former United States Patent and Trademark Director David Kappos said recently that this year’s unprovoked drop in patent filings in the United States is unprecedented and signals a shift toward more secrecy by inventors trying to protect their ideas. Meanwhile, the US trend toward antitrust actions at home is having deleterious effects for US businesses overseas, he said.


The paper from Kappos is long, so we have not read it yet (only took a glance). It's too long to rebut on a point-by-point basis, unless we spend a day or so embarking on the task (it's a resources issue, not a feasibility issue). Based on the above, Kappos tried to excuse the fall of patents by blaming it on "secrecy by inventors" (no pursuit of monopolies with a negative connotation like secrecy, as if they're doing something suspect or suspicious). To be fair, it's not a direct quote from Kappos, but if that's a point which he actually made, then his argument is extremely weak. Pretty much all arguments in favour of software patents (weighing the downsides too) are ludicrous at best, especially when viewed from the angle of software developers. Kappos' message was only promoted by pro-software patents sites and patent lawyers' media, as one might expect. We are talking about sites like ManagingIP, which are now organising "European Patent Reform Forum in Munich" (almost definitely stuffed with patent lawyers and no scientists on the panel/s).

IAM, another site of patent lawyers, has been repeatedly arguing with me over at Twitter (for 3 days in recent days) about its biases and views on patents. They are so easy to beat in a debate that they end up admitting that the "vast majority of patents" have no value and "do nothing". Yes, they actually said that, contradicting their own marketing pitch. These people even tried to oppose the characterisation of patents as a monopoly, even though David Kappos was quoted as calling them a "20-year monopoly".

Here is IAM showing us that the "worldwide head of IP strategy at IBM" is now moving on, just like Mr. Kappos. Here is where he is heading: "European licensing powerhouse Technicolor has made a major new appointment. Arvin Patel - previously senior VP of IP and licensing at Rovi, and before that worldwide head of IP strategy at IBM - has joined the French company as its chief IP officer."

He is joining somewhat of a patent troll, or a patent aggressor at the very least.

Recall the time when IBM's patent chief/strategist (Marshall Phelps) defected to Microsoft and established the company's patent war against GNU/Linux and Free software, which IBM pretends to be ever so supportive of (despite IBM being a predominantly proprietary software company that lobbies for software patents all around the world and uses them aggressively for income).

TangibleIP (patents booster) said the other day to another patents booster that "companies such as IBM have a "Troll Division"..IP industry allowing anti-Troll agenda to propagate is not our finest hour" (well, the term "IP industry" is laughable because it cannot be an industry when it's non-producing; it cannot be an industry at all. Imagine saying "copyright industry" or "trademark industry").

"Recall the time when IBM's patent chief/strategist (Marshall Phelps) defected to Microsoft and established the company's patent war against GNU/Linux and Free software, which IBM pretends to be ever so supportive of..."Going back to the argument of Kappos (formerly IBM) in favour of software patents, he would have us believe that software patents -- not military might and international lobbying power for example -- give the US its advantage. Watch Japan enforcing a patent monopoly against China, as reported by IAM the other day. One thing that we noted the other day about China is that it allows people to patent software. It probably grants more patents on software than the US does. As Patent Buddy put it the other day: "It is now easier to obtain a software patent in China than in the United States."

And yet, China does not dominate the field software, does it? Yes? No? Far from it! And Japan can still bully China using patents. There is basically nothing to be gained from such a strategy, unless patents are only to be treated as 'trophies' (assuming the perception that they're analogous to innovation can be perpetuated for much longer).

Recall India's policy on algorithm-related monopolies. India is making a terrible, suicidal move right now by deciding to allow software patents (this can still be stopped. Even without software patents Indian software developers have been doing pretty well, so why the sudden change? It's probably designed to stop them (the 'threat' of commoditisation to multinationals). As one site of Indian patent lawyers put it a couple of weeks ago: "Last week was a busy week at our patent office!! The Controller General issued clarifications under the Designs Act / Rules, and these examination guidelines under the Patent Act / Rules. I will not do an analysis of the guidelines but simply extract out some relevant parts for our readers. For more our readers can refer to our previous posts on Section 3(k) here, here, here, here, and here, and others. These guidelines are extremely detailed and would definitely be helpful to practitioners, and patentees."

Well, they are truly unhelpful to India itself, not just to its developers but also to local software companies. These patents would help multinational companies like Microsoft and IBM, not Indian companies, which makes one wonder who the Indian patent office actually works for. Software patents would help the likes of Microsoft and IBM crush low-cost competitors from India.

The US patent system, currently the 'leader' in software patents (and their birthplace), is an utter mess. "United 4 Patent Reform" demonstrates the extent of litigation by patent trolls and non-practising parasites. It says that "East Texas accounts for 44% of all patent case filings in 2015." One even shows the following chart:

Texas patent cases



Is this what Kappos deems the success of the US system? Bear in mind that the large majority of these lawsuits involve software patents. Some estimate that as many as 70% of troll lawsuits would be eliminated if software patents were deemed invalid and no longer granted by the USPTO. Speaking of the USPTO, Kyle Bass, who was mentioned here as recently as last week (he had been manipulating stocks using patents), calls it a "Kangaroo Court". To quote the Wikipedia definition of this term, "A kangaroo court is a judicial tribunal or assembly that blatantly disregards recognized standards of law or justice, and often carries little or no official standing in the territory within which it resides. Merriam-Webster defines it as a "mock court in which the principles of law and justice are disregarded or perverted". The term may also apply to a court held by a legitimate judicial authority who intentionally disregards the court's legal or ethical obligations.

“ARM sent patent threat letters trying to remove nnARM from the net”
      --President of the FFII
"A kangaroo court is often held to give the appearance of a fair and just trial, even though the verdict has in reality already been decided before the trial has begun."

In the above case we have Kappos, who used to head the USPTO, trying to overrule the rulings of many US courts, including (initially) the US Supreme Court. Who do these people think they are? Just like software patents themselves, Kappos makes a mockery of the US courts system and the US as whole.

Last but not least, let's recall what IBM really is and where it stands on this subject. In reference to an ARM-IBM surveillance alliance (centred around 'IoT' hype), IAM wrote: "Absurdly, according to definitions used by many proponents of US patent reform, ARM should be regarded as a "troll". "

Well, ask no-one other than the President of the FFII (prominent opponent of software patents) what ARM has done to him. "ARM sent patent threat letters trying to remove nnARM from the net," he wrote. ARM is not quite what it seems on the surface, It's actually a British company, not a US company, but misuse of patents for (anti-)competitive purposes is something that Intel does too (it does even worse things).

Attributing the 'success' of US software companies to software patents is simply ignoring the facts and disregarding all software companies other than very few giants (except when they themselves were still small).

"The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments." —Oracle Corporation, IBiblio: Oracle Corporation's position paper on software patents (when Oracle was still small)

Recent Techrights' Posts

Father of XBox Says What Microsoft Does Not Want to Hear About XBox (They All Know It's Dead)
Microsoft just worried shareholders will find out Sharma is "just a face" and an undertaker
 
Links 25/02/2026: Fifth Year of War in Ukraine, Dihydroxyacetone Man Looking to Start More Wars
Links for the day
Gemini Links 25/02/2026: Retired a Year, Illness, Losing a Lung, and "Back to Gemini"
Links for the day
The Register MS Published a Ponzi Scheme-Boosting Fake Article This Morning. It Mentions "AI" 30 Times.
Will credibility be left after the bubble pops entirely?
They Try to Ruin Linux, Too ("Attestation" in GNU/Linux)
In the context of Web browsers, this isn't unprecedented and we wrote a lot about it
Mozzarella Company: All Our Cheese Comes With Mold Now, But You Can Ask the Seller to Remove the Mold
If you reject and oppose slop, do not download/use Firefox
Stallman Was Right About Back Doors
I had some conversations with Dr. Stallman about security and back doors
Australian Signals Directorate ex-employee sold back doors to Russia
Reprinted with permission from Daniel Pocock
IBM Debt-Loading and Liability (Toxic Asset) Offloading
One can hope that IBM will be subjected to the same attention Kyndryl received, but this boils down to politics
Links 25/02/2026: 'Hybrid Warfare' and "Boycott the State of the Union"
Links for the day
IBM (and Red Hat) Can Disappear in the Coming Years, Along With Kyndryl (Debt Twice as Big as Its 'Worth')
No wonder Red Hat workers tell us they hate IBM
Software Freedom is Science, But It Also Sustains Life
In some sense, Software Freedom can be explained in the context of nourishing people
“Xbox, like a lot of businesses that aren’t the core AI business, is being sunsetted."
There has been a lot of narrative control lately, including at 9PM on a Friday
3,300 Capsules Known to Lupa and Currently Accessible
Gemini Protocol turns 7 this summer
When it Comes to Firmware, the FSF and Its Founder RMS Won the Argument (But Not the Fight, Yet)
The "whataboutism" tactics are physiological manipulation means of discouraging those who move in the correct direction
Austria Tackles Digital Weapon Disguised as "Social" and/or "Media"
Are we seeing the end days of Social Control Media?
Nothing Over the Horizon for XBox
XBox is not even being sold in many places anymore
Solicitors Regulation Authority (SRA) Contradicting Itself: You Can Use Slop to Cheat Clients, But You Can Also Face Disciplinary Actions Over Slop
Where does the SRA stand on the matter?
In Praise of Eben Moglen
Hopefully Professor Moglen will be with us for many decades to come and become an active speaker on issues such as Software Freedom
Sunsetting IBM (for the Benefit of Few Corrupt Officials and Wall Street Speculators)
IBM will not (and cannot) survive for much longer [...] The issue is bad leadership, not any particular nationality/race
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 24, 2026
IRC logs for Tuesday, February 24, 2026
Gemini Links 25/02/2026: Rise of Solar in 2025 and Smallnet Protocols
Links for the day
HR Blunder at IBM or IBM Struggling With Money?
Weird for such an allegedly rich company to be so stingy
Gemini Links 24/02/2026: x86 Computer In-Browser and Administration
Links for the day
Envy is the #1 Enemy of Richard Stallman
Whenever you see someone mocking Richard Stallman, ask yourself: does this person have a reason to be jealous of Richard Stallman?
Life is Sweeter When Less Means More
People need to think "small", not "big" (as in capital)
Championing a Cause
Probably over 100 million GNU/Linux users on laptops/desktops
Balmoral rape cult & Debian suicide cluster indifference, community
Reprinted with permission from Daniel Pocock
Can Much Longer Can the Financial 'Press' (Pump-n-Dump Megaphone) Cheer for IBM's Accounting Enigma?
IBM has fallen almost 25%
France Needs to Focus on Software Freedom, Not Flags
We need more SIP advocacy!
Combatting Censorship in the "Civilised World": The Media Blackout Surrounding EPO Strikes and Other Large-Scale Actions
We - collectively speaking - cannot afford to keep the Office in the hands of a "Mafia"
Religious or Not, Consider Quitting Social Control Networks (All of Them) This Season
Lent is a good time to quit addiction such as social control media
EPO Strike Actions and Other Industrial Actions Are Effective When Management Fears the Staff and Staff No Longer Fears Any Managers
'António the unready' should get ready to be ousted
Liberating the Self From the Invisible Prison of Plutocrats-Controlled Media and Social Control Media
Can you always see the full picture or does something (someone powerful) obstruct it?
Links 24/02/2026: Drug Cartel Decapitated, Jeffrey Epstein-Connected 'Linux' Foundation Promotes Slop and Buzzwords at MWC Barcelona 2026
Links for the day
2023: Layoffs Are Because of "AI". 2024: Shares Up Owing to "AI". 2025: Shares Recently Fell Due to "AI". 2026 Forbes (Paid by IBM): Shares Falling is Good!
"AI" is smoke and mirrors
Bitcoin: Code of Conduct stifled open source concerns
Reprinted with permission from Daniel Pocock
Slop Boosters and 'Hype Agents' Render Themselves Irrelevant and the General Public Becomes Incredulous Due to "Bros Who Cry Wolf!"
It won't age well
"Half-baked Vibe Code Shipped Full of Errors"
Seems timely after our latest article
IBM Did Not Fall Because of COBOL Vapourware, IBM Still Collapses Because It's Worthless, Way Overvalued, and Very Likely Cooks the Books
language-to-language conversion (in the context of programming) is nothing new
Links 24/02/2026: Copyright Litigation Over Anne Frank’s Diary, "Arrogance of Developers"
Links for the day
Another New Low for Solicitors Regulation Authority (SRA): Authorising Slop Disguised as "Legal Advice"
SRA is a lapdog - not a watchdog - of the "litigation industry"
EPO "Cocaine Communication Manager" - Part IV - "Many Jobs Were Given to Spanish Employees for No Related Skills At All"
The EPO's fate might be similar to that of the XBox
Gemini Links 24/02/2026: Hardware Tinkering and Slop Bots Attacking the "Small Web"
Links for the day
Quitting Reddit (Social Control Media Controlled by Conde Nast)
There is a new post in Reddit
IBM is the World Champion at Layoffs and There Are Reportedly More Layoffs in IBM This Month (EU)
IBM fired 60,000 in 1993
Free Software is for Everyone
Young and old, rich and poor etc.
Gemini Links 24/02/2026: Voltage Divider on Slide Rule and Many Raspberry Pi Projects
Links for the day
Links 24/02/2026: Telephone Turns 150, Political News Catchup, and Rearmament
Links for the day
Asha Sharma "a Palliative Care Doctor Who Slides Xbox Gently Into the Night"
2026 will probably be the last year of XBox
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, February 23, 2026
IRC logs for Monday, February 23, 2026
Probably IBM's Worst Day in Wall Street in Well Over a Decade
They try to blame some Anthropic slop, but that's just a distraction from IBM having nothing to offer
The Monday After the 9PM-on-Friday Prepared Puff Pieces-Under-Embargo Microsoft Strategy for XBox Collapse
There are more layoffs ahead at Microsoft's XBox
Kyndryl Also in a Freefall Today, James Kavanaugh's Accounting Skills Seem to be Based on Pumping and Dumping
What is the real value of Kyndryl when its debt is about twice its alleged "worth"?
Not Much Left to "Pump" in This Slop Bubble
let's hope that by the end of the year the whole bubble fully implodes
IBM Common Stock Crashes Hard (Almost $100 Below the Levels of February's Beginning)
Another Kyndryl?
Links 23/02/2026: Withdrawal From Slop and Ukraine Invasion Enters Fifth Year
Links for the day
Gemini Links 23/02/2026: Moving to Gentoo, Wake-on-LAN Script
Links for the day
Kyndryl Fell by About 50% in One Day, IBM Fell 23% in 20 Days
the IBM Titanic
Security and blobs, by Alex Oliva (GNU Linux-Libre)
Reprinted with permission from Alex Oliva
Trusting the Evil Maids
Don't listen to liars and frauds
Aaron Swartz Has Already Explained What Reddit/Conde Nast Meant to Him and Why We Should All Avoid Reddit If We Value Software Freedom
Aaron Swartz did not start Reddit
Valnet's Good Legacy of GNU/Linux Advocacy in Journalism Form
Let's hope they carry on like this
Techrights Thanks Every Single EPO Worker Who Went on Strike Today
We have so much in common
Coders and Thinkers
I used to be a hyper-productive coder; these days I do more thinking and writing
Slop (So-called 'genAI') is Not a Skill, Slop Gets You Suspended or Even Sacked, It Can Eventually End Your Career
Benj Edwards, a so-called 'Senior' so-called 'AI' so-called 'Reporter'
There is No Such Thing as "AI Skills", "AI Competency", "AI Fluency" Etc.
Slop does not give anybody an advantage
EPO Staff Union: The Strike Actions and Other Industrial Actions "Have Already Delivered Measurable Gains."
SUEPO Munich has just issued a statement to staff
Links 23/02/2026: "What Boston Will Cost Me" and Women as Hostages
Links for the day
IRC Usage Levels Seem to be Rebounding This Year
it looks like the total count (tally) of users increased a lot lately
Microsoft Tricked the Media Into Lying About Microsoft Layoffs in January. Now It Does the Same (in February).
Microsoft has got the media by the wallet (or balls)
Free Software Projects Become Slow Due to Slop
It does not improve efficiency or productivity, it reduces both
EPO Strike Has Begun (or Resumed)
The EPO status quo is untenable
Links 23/02/2026: US Surrenders to Climate Change (to Benefit Oil Companies and Slop), UK Court of Appeal to Hear Mazur
Links for the day
GAFAM Jobs No Longer Lucrative
Those days are long gone
Based on Insider Leaks, Asha Sharma's Job is to Kill XBox While Talking About "AI"
They cite SneakerSO
Germans Recognise the Contagion is Digital, Not Racial
How to dismantle or neutralise those weapons? Turn them off
Free Software (or Software Freedom) Ain't No Religion
It's hardly surprising that some of the loudest opponents of Software Freedom and its luminaries also disregard or bend facts
Dr. Andy Farnell Explains Why the Slop Industry is Like Trespassers and Thieves
interesting new article about robots.txt files
The Demise of the Solicitors Regulation Authority (SRA) and Profession Based Around Bullying With SLAPPs and Empty Threats
For press to survive and thrive in the UK we need the hired gun to be submerged
Linux Kernel 7.0 Release Candidate Comes Out, Stallman Turns 73 in Three Weeks
It predates Microsoft and Apple
In Greenland, Firefox's Gecko and KHTML (KDE, But Bastardised by Apple) Bigger Than Chrome
Are those Danes recognising the risk of monoculture?
Gemini Links 23/02/2026: Imperfect Journal, Evil, and "Progress Goes Boing!"
Links for the day
“Power is a Thing of Perception. They Don't Need to be Able to Kill You. They Just Need You to Think They are Able to Kill You” ― Julian Assange
When leadership becomes corrupt enough to lose a sense of authority its days are numbered; it'll be replaced
IBM Has Already Admitted 2026 Mass Layoffs (in 4Q Earnings Call)
We showed this earlier this month, but some people bring that up again
Reasons to Go on Strike in the European Patent Office (EPO)
If you live in Europe and don't work for the EPO, you can still help
First speech of Chanellor Hitler, Andreas Tille & Debian denounce Branden Robinson
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, February 22, 2026
IRC logs for Sunday, February 22, 2026