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)

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