Bonum Certa Men Certa

David Kappos Whines About the Supreme Court Shutting the Door on Many Software Patents

From USPTO Director to Lobbyist for Patent Maximalism and Software Patents?

Fordham IP Conference
No comment necessary



Summary: Reports from the Fordham IP Conference serve to show nefarious bias which serves not only patent lawyers and their large clients (like Microsoft or IBM) but also software patents (which Microsoft and IBM have turned into their business model as sales continue to nosedive)

THE Fordham IP Conference (i.e. stuffed and/or staffed with lawyers, no public interest representatives) has just ended and there was material in it which related to the EPO, the UPC, and software patents in Europe (to be covered separately). Unless you are very wealthy, you're unlikely to have been able to attend and unless you are a patent maximalist, you wouldn't have had a chance to speak there (just listen). It's an echo chamber, a meeting behind closed doors (almost), a conspiracy or a think tank (to put it politely). It's one of several such events (in big and overpriced cities) which are efforts to collectively shape the law and influence policy. Output/reports are like a think tank's bit of "research". Dissenting voices are not allowed, let alone invited to offer input.



"It's one of several such events (in big and overpriced cities) which are efforts to collectively shape the law and influence policy."Right now software patents in Europe are a big deal because the US basically pushes back against such patents, much to the chagrin of patent lawyers who profited from them (usually at the expense of programmers like myself and millions of others).

David Kappos, formerly of USPTO and IBM (now increasingly notorious for aggression with software patents), is acting as though he's above a Supreme ruling or as if SCOTUS is wrong (because of his own financial interests). One must recall what Kappos did after leaving the USPTO (now a patent profiteering person, who is still pushing for software patents).

"David Kappos - not a fan of the Supreme Court's decisions on section 101," says the caption below his face. We will cover the latest developments regarding section 101 some time in the weekend.

According to this outline of the event, composed by a proponent of software patents, Alice upsets Kappos:

In terms of Supreme Court decisions, especially the CLS v Alice Bank decision, David said that it is impossible to make sense of the Supreme Court jurisprudence on section 101. In trying to make sense of section 101, the PTO is trapped by a set of Supreme Court decisions which are incomprehensible. That is has been the architect of PTO's real struggle to get to grips with patentable subject matter. Judge O'Malley agreed that it is difficult to understand what is and is not left in terms of patentable subject matter, but this challenge has led to many more creative arguments from lawyers who try to distinguish their inventions from the realm of a CLS v Alice Bank situation. Sir Robin chimed in stating that in the real world the patent office does issue bad patents - it is inevitable This is because its a one-sided examination process conducted by an examiner who may not have all of the prior art before him or her and who is generally under-resourced. You can see this in Europe where an opposition takes 10-15 years to decide whether a patent is valid. This is a broken system. The America Invents Act, to Sir Robin, looks great in comparison as it provides a quicker, more efficient regime to address validity. It also provides certainty, which is hugely important.

David agreed about the inevitably of some patents being wrongly granted. In particular, this is an issue when an examiner is being asked whether an invention is abstract - that very question is entirely subjective and, as Sir Robin noted, in such a situation of course wrongly granted patents will be inevitable.


Michael Loney, who went to New York to cover this event for MIP, wrote about the role/input of Kappos as follows:

David Kappos who, (as Hansen says) everyone knows, has 10 priorities for whoever is the next US president:

Innovation = action, progress, leadership US must resume its role as world leader in innovation Federal government will lead in championing and rewarding innovation Government needs to recognise innovators need incentives Patent system is our system for incentivising innovation - we need a strong patent system Administration should not shy away from leadership in tuning patent system, from a position of strength Curtail abuses, but with the view that the benefits of patents far outweigh occasional misuses Patent system must take precedence in conflicts with other systems of law, especially antitrust law We will favour creation of new technologies and dynamic competition not protecting status quo (as antitrust law does) Patent system is enshrined in the constitution because innovation is about exalting what's next not what's now.

In the Q&A, he says he feels the current (Obama) administration, in its second term, has not been as supportive of patents as it was before or should be.


It would be a lot nicer if Kappos just stayed out of policy and didn't contribute to the impression that patent lawyers and patent aggressors such as IBM steer policy in their favour, such that money (billions of dollars) is passed into their pockets without them lifting a finger. They self-discredit their firms and also discredit this system as a whole. It's no better than what we find in ISDS (e.g. in TTIP/TPP) or ACTA, but there's less public outrage because few members of the public 'grok' patent law. ⬆

Recent Techrights' Posts

The Register MS: Turnover Fell by Over a Million Pounds (About 20%) in One Year, Administrative Expenses Rose by Almost Half a Million Pounds, The Register MS Operates at a Loss
This is not a (commercially) healthy publisher
Freedom Is Not Free of Charge, Freedom Can be Very Expensive
Being someone's "slave" is the "default" when no resistance exists
Intercontinental Brigading - Part XXXX - Swatting by Proxy
Using imbeciles who lie to cops and then dox cops (and already have arrest record and court documents wherein they admit being stoned in front of the cops)
Intel Craters at Taxpayers' Expense (Bailouts for Failing Companies Simple Don't Work)
GOP, which did this, has lost many seats
Mass Layoffs at IBM, Also Outsourcing to India
What IBM does to itself it is doing to other entities as well
 
IBM Compels Workers - Even at Red Hat - to Become "Retired-ish"
Who needs RAs (layoffs, which have been rebranded as "buyouts" like pink slips are generous "gifts") when workers can have their butts kicked every day and WARN Act reporting thresholds are never approached?
Links 06/11/2026: "XBox Is Closer Than Ever to Being Sold Off" and "BuzzFeed Stock in Free Fall"
Links for the day
Gemini Links 06/11/2026: Dao and Dreams
Links for the day
20 Years of Techrights
Celebrating 2 decades of abuses of power being watched (and looking back at key changes)
Linux (and Linus Torvalds) Sleepwalking Into a Binance-Level Catastrophe With Slop 'Code'
Someone should ask Linus Torvalds or his boss (Linux Foundation) if they deem slop, which nobody audits, trustworthy enough to add to every computer out there running the Linux kernel
Vitaly Orlov Weaponises Deep Pockets to Leverage High Court of Justice in London for Censorship and Punishment of Critics
reproduced in full for more exposure and to make censorship harder
Intercontinental Brigading - Part XXXXI - What I Told British Police About Lozza the Same Month Garrett Was Preparing His First Nastygram From 'Hired Guns' Brett Wilson LLP
Lozza and Garrett
Outsourcing at IBM
Cheapening of the workforce is hardly a new problem
Links 06/11/2026: Slop "Companies Race to Lock Down Oil Clients" and Salon Shuts Down
Links for the day
Our Third Decade
Our anniversary is tonight at midnight
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, November 05, 2026
IRC logs for Thursday, November 05, 2026
During Strikes and Industrial Actions Lots of EPO Staff Organised Yesterday and Will Do the Same Next Week
There really needs to be a genuine election, not a reappointment
Gemini Links 06/11/2026: Hadestown and "Where Has the Electronics Shop Gone?"
Links for the day
Links 05/11/2026: Rule of Law Vanishing in Turkey, Joshua Wong Still Martyred by Chinese Regime
Links for the day
Gemini Links 05/11/2026: Classical Music, Politics, and Seeed Studio
Links for the day
Like Almost Every Slopfarm, UbuntuBuzz Seems to Have Thrown in the Towel
Linuxsecurity and Linuxiac (to some extent Linuxjournal) are still going, but for how much longer?
EPO 'Midterm' Elections Should Oust the Dictator
Tentatively a failure to secure another (unprecedented) reappointment before Christmas
Secret IBM Layoffs and Increase in PIPs (Silent Layoffs)
The media is failing to do its job
Links 05/11/2026: "Voice is Underutilized" and How Data Centres Lost the Midterm Elections
Links for the day
Intercontinental Brigading - Part XXXIX - Crime Numbers Regarding GGG (Americans) and Why Those Still Matter
Time does not undo the actions
Intercontinental Brigading - Part XXXVIII - Telling the Police About the Defamatory Blog Where Posts Targeted My Wife and I (From Across the Atlantic Ocean)
Two years ago we spoke to cops a lot
The Register MS is Losing Money Again, Based on The Register MS
Selling out didn't pay off for very long
There Are No "Layoffs" Anymore, Layoffs Got Rebranded
We're entering bizarre times when layoffs are said to be "down" (according to the regime that suffered a 'bloodbath' in the election) because companies quit using the term "layoffs"
Gemini Links 05/11/2026: Rivers of London, Soul Cakes, STMicroelectronics, and Slop
Links for the day
The Register MS Has Just Published Fake Article With "AI" 84 Times in the Page Because It Was Paid to Do This!
Astounding number of mentions of "AI" (84 in total)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, November 04, 2026
IRC logs for Wednesday, November 04, 2026
Links 04/11/2026: Slop Helps Break Laws and Scam Altman Pretends Chatbots Are Persons
Links for the day
Gemini Links 04/11/2026: Abacus and Spare IT Equipment
Links for the day
Viet Nam and Thailand at High Adoption Levels of GNU/Linux, Other Nations Nearby Are No Exception
Helen Chiang and her colleagues say it's a "clown show" at Microsoft
Richard Stallman on What It's Like to be Threatened by Strangers With Software Patents
We hope that some EPO insiders will take time to listen to this talk
Intercontinental Brigading - Part XXXVII - Tasteless, Tactless Time for "Virtue-Signalling" (When Your Actions Are Much Like the GOP's)
Violence by cops isn't a "leftist" thing
Stealth Layoffs at IBM (PIPs and Bailouts)
string of reports or unverified hearsay
United Arab Emirates: GNU/Linux at Over 8%
According to statCounter
As XBox Goes Out of Business Helen Chiang Adds Insult to Injury
XBox sales are worst in 25 years
Steven Vaughan-Nichols is Slop
Just look at this
The Register MS is "Hosting a Dinner" for Sponsors
Remember that The Register MS keeps publishing spam about "AI"
Intercontinental Brigading - Part XXXVI - A Potent Microsoft Threat to Administration of Justice Globally (Not Just Fair Elections)
Breaking into machines to cover up one's own crimes
Intercontinental Brigading - Part XXXV - When One Does Not Understand Security (Nor Ever Pursues Security)
One might therefore conclude that Garrett is a proponent of American back doors
Links 04/11/2026: "Democratic Establishment" Wins Big and "Pentagon Sued Over Hegseth’s New “Future of Warfare” Committee Led by Musk"
Links for the day
Intercontinental Brigading - Part XXXIV - Women as Hostages, Even Spouses
First he put his own spouse behind bars by accusing the spouse of what he himself seems guilty of
A Geminispace Tally
That's not the Web, it is an alternative to it
Intercontinental Brigading - Part XXXIII - Shooting the Messenger is a Presidential Tactic
why our ministers are looking for ways to fix the law.
Andy's Latest Writings About Proton CEO Andy Yen, "JavaScript Required", and Slavery in Technology
Andy (of The Cyber Show) has some new material
Intercontinental Brigading - Part XXXII - Malfunctions Reported in Windows Voting Machines (as Usual)
"There are always problems," Ryan told us
Gemini Links 04/11/2026: GoAccess, Adopting Gopher, and Twisty Passages
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, November 03, 2026
IRC logs for Tuesday, November 03, 2026
"The Judge Accepted That Mrs Schestowitz Had Been the Subject of a Vicious Campaign of Online Harassment"
That's consistent with how they men treat women