US patent chief to software patent critics: "Give it a rest already"

http://arstechnica.com/tech-policy/2012/11/us-patent-chief-to-software-patent-critics-give-it-a-rest-already/

by sciwiz • 14 years ago

330 202 14 years ago

api• 14 years ago

Self-serving bureaucrat defends his niche...

swohns• 14 years ago

The US Patent System is the envy of the world!? I'd love to have more international opinions on this, but from my experience in Japan, France and England, no one envies our patent system, and most programmers simply ignore it even when working on products for the US market.

rayiner10• 14 years ago

I don't know about "envy of the world" but until China started enforcing IP rights a little more strongly, US companies I worked with hated doing business with Chinese companies because they would just copy everything.

Locke16892• 14 years ago

While all under the umbrella of "intellectual property," trademark, copyright, trade dress, and the various forms of patents all cover different things.

I think many people doing business in China are more concerned about trade dress (fooling people into thinking that their item is the "legitimate" thing).

Edit: rather than patents. I also think copyright and trademark are big concerns. I don't think patents are.

skreech• 14 years ago

I'd like to have a credible source, or I'd be prone to believe he just made it up.

jeremiep4• 14 years ago

Just goes to show how disconnected from reality our politicians really are. How come its always the least innovative people who try to protect innovation?

duked• 14 years ago

I'm French, now living/workin in the US and I'm not too sure I agree with you. Did you know that even small businesses when they register at "Chambre du commerce" they usually protect their IP/Name through INPI. That's like the first thing they do even if it's a food truck. So for me IP protection is very present in our culture. Same for the companies I worked for we usually submit patent to USPTO before EPO.

nitrogen5• 14 years ago

Even though the USPTO is responsible for both patents and trademarks, there is a big difference between the two. A food truck protecting its name would be obtaining a trademark, not a patent.

coffeeaddicted• 14 years ago

Please do not confuse IP protection with the patent system. For example I love the copyright system while I hate the patent system. You don't copy code accidentally and to use your example - it's still relatively easy to research if names are already used and you don't have to do that often.

But you have a really hard time figuring out if you break some patents while developing software. Even lawyers and courts often have a hard time figuring out if something steps on a patent or not. As software developer where you develop new things every day you can basically only close your eyes and code on hoping you don't trigger too many patent mines. Patents belong as little in writing software as they belong in writing other things like books, articles or speeches.

mercurial• 14 years ago

I'm French too. You're talking trademark. It's OK to protect your name. Actually, patents themselves are OK in a lot of domains, when you are patenting a specific process, the concrete, multi-step application of an idea. The problem with software/business patents is that you're usually patenting an idea.

Take it another way. Write software in the US, and as soon as you're making money, you run the risk of being sued by a patent troll in Eastern Texas. Write software in France, you run no such risk (some would even maliciously say that you don't run the risk of making money).

bjhoops12• 14 years ago

So true! I laughed out loud when I read this line.

reitzensteinm3• 14 years ago

> He noted that during a time of growing litigation in the smartphone industry, "innovation continues at an absolutely breakneck pace. In a system like ours in which innovation is happening faster than people can keep up, it cannot be said that the patent system is broken," he said.

Metric X is high, therefore disputed policy Y is boosting metric X.

If more people understood the inanity of this line of argument, the world would be a much better place.

The head of the USPTO isn't even willing to have an intellectually honest debate on the subject. It's pretty clear that change is not going to come from within.

manaskarekar4• 14 years ago

Somewhere in a patent-free parallel universe humans are flying around in cars.

adestefan• 14 years ago

Because patents are the only thing holding back flying cars.

MereInterest• 14 years ago

>Metric X is high, therefore disputed policy Y is boosting metric X.

I would say that it is even worse than that, because the metric itself is disputed.

If the police were to start a policy of giving out free GPS handguns to anyone, they might justify it by saying that they have caught more murderers since the policy began. The metric itself is flawed, as it assumes that catching a murderer it good in and of itself, and is in fact better than preventing a murder in the first place.

Here, he is arguing that lawsuits are good in and of themselves, without looking into whether those lawsuits have a positive or negative effect. He merely states without justification that the lawsuits have the effect of ``protecting innovation.''

vy8vWJlco• 14 years ago

Stating something without justification is the BEST way to state it. Haha. It's "begging the question" in it's most convincing form.

At this rate, I'd rather just pay an "Innovation Tax" and be done with it.

jeffdavis5• 14 years ago

> Metric X is high, therefore disputed policy Y is boosting metric X.

Although the reasoning doesn't exactly follow, it does still say something important: that the patent system isn't totally breaking innovation. In other words, he's saying that we have something to lose, and he's right.

You can make a strong argument that we won't lose it, and I'd agree with you. But it's not exactly proven. Actually, I don't think it's a simple win or lose situation, I think that patents (or the lack thereof) change the nature of things invented, and it's hard to quantify whether it's better or worse.

Nursie2• 14 years ago

It doesn't really say anything important (IMHO) because we may also have a hell of a lot to gain.

You can make an equally strong argument that not only will we not lose it, but we'll be far, far better off with major restrictions on what he's peddling.

rohern• 14 years ago

> the patent system isn't totally breaking innovation

This is like saying it wouldn't be so bad to be blind because blind people are able to live fulfilling and experience-rich lives. Yes, that is true, blind people do live rich and fulfilling lives, but this says nothing at all about the richness of the lives they could be living if they were not blind.

We have fewer than five large companies dominating the smart phone space. Let's ignore for a moment the fallacy that because smart phone innovation is occurring that therefore all innovation is a-okay. There are no small players in this space. This is like American car companies before Tesla and the other new electric companies got started. We know from experience that the domination of an industry by a few large players does not lead to innovation in the long term. It leads to tit-for-tat competition with little novel exploration of the space of possible products. These companies become conservative and self-concerned.

I think if you do any research into the current patent system, you will find it self-evident that the situation is untenable. Amazon holds a patent on "one-click ordering". They own a 20-year patent on the notion of only needing to click one button to make a purchase. Apple was just granted a patent on "searching across multiple databases simultaneously". The absurdity of the situation is apparent.

We are already in a period where large companies can use their patents to crush startups. It does not matter if the patent dispute is spurious and the startup clearly within their rights. Large companies with in-house legal staff can drown a startup by requiring them to fork out enormous quantities of money for legal representation in their self-defense. With a suite of patents, a company like Apple can bring suit after suit until finally the small company either loses one (these things are not decided by engineers or experts in patent law, they are decided by juries, a curse and a blessing), or runs out of money. This is analogous to the libel/slander situation in Britain, in which the cost of defending against a libel suite is enough to ruin a journalistic enterprise.

Read about what happened to Vlingo, as the situation I just described has already occurred: http://www.nytimes.com/2012/10/08/technology/patent-wars-amo...

jpadvo• 14 years ago

> it does still say something important: that the patent system isn't totally breaking innovation.

Rarely is it the case that anything is truly "total". And if the patent system is squashing 25% of innovation in the software industry, or even 10%, that is a big problem.

Also, it is possible to squash certain kinds of innovators - like startups without tens or hundreds of millions of dollars to spend on patent litigation. While massive corporations can get nailed for a billion or two and hardly notice.

A patent-litigious environment is deadly for startups. And startups are crucial innovators.

reitzensteinm3• 14 years ago

You seem to be arguing against something I neither said nor implied.

I am not claiming that my opinion is proven. The data does not exist to have that level of certainty either way.

I merely have a strong belief, and do not outright reject the notion that Mr Kappos could be right.

To do so would make my arguments as intellectually dishonest as his, and I believe that to be unacceptable no matter which side you're on.

sk5t• 14 years ago

Suppose I were to break into your house, steal one item, and soil the rug each day, every day, evading all determined efforts to stop me; yet you still kept going to work, paying your taxes, and so on. Could you prove that the cessation of my bad actions would not throw your participation in society into a tailspin? Or, would it merely be the welcome end to an extremely expensive and annoying problem?

stephengillie2• 14 years ago

In the article, his responses suggest that he views patents as the first step toward litigation - that suing or being sued is an intended, by design outcome of patents existing.

It's as though he sees litigation and prosecution as beneficial to our economy, instead of seeing the ways in which it blocks innovation and free market actions.

mullingitover• 14 years ago

> It's as though he sees litigation and prosecution as beneficial to our economy

Well as a lawyer, litigation and prosecution are very beneficial to his local economy.

rayiner10• 14 years ago

Without agreeing with him on this specific point, I do have to note that just because he sees the amount of litigation as a good thing does not mean he thinks that litigation itself is beneficial to the economy.

As a general rule, litigation is a sign of activity. The more economic activity you have, the more interactions and transactions you have, the more conflicts that arise, and the more litigation you have to resolve those conflicts. The litigation itself is of course overhead, but the fact that there are many conflicts can be a sign of an industry in which a lot of things are happening.

nitrogen5• 14 years ago

Ah, so the windows are meant to be broken, else how will glassworkers remain employed?

IanDrake• 14 years ago

Innovation?

The problem is that people are patenting non-innovative stuff. At this point one could write an automatic patent generator, much like domain name generators.

Or we could have the Patent-libs (like ad-libs).

Software that runs on [DeviceType] that has [ShapeOfCorner] and allows the user to [DigitalVersionOfNaturallyOccurringAction] which produces [ObviousOutcome].

manaskarekar4• 14 years ago

Maybe we should. Exhaust all combinations and verify them for time when this "idea" was conceived, then dump out the list on a website and have people come up with uses for it (and actually use them.)

Boom! Prior art to invalidate future bullshit.

themgt• 14 years ago

"Not a bear in sight. The Bear Patrol must be working like charm."

mtgx2• 14 years ago

He's the one that pushed for the recent "reform" of the patent system that Obama praised so much. If he would admit he was wrong, and he did nothing major to help the industry, he would probably lose his job. Not that Obama doesn't think like him, too regarding the patent system...so he might not.

malandrew2• 14 years ago

Yup. That was the first line that stuck out to me too and prompted me to come over to HN and comment.

Innovation is happening at a breakneck pace despite software patents because everyone is just ignoring them and inventing anyways.

The patents do damage after the fact, killing good tech jobs by diverting money from engineering and R&D to the zero-sum game of patent litigation that just leaves society as a whole poorer.

TBH, I don't know how many entrepreneurs opt out of entrepreneurship due to the risk of being sued down the line, but I doubt that it is very high. Most of the entrepreneurs worried about patent litigation will just start amassing a patent portfolio of their own as a defensive strategy. The end result of that game is less progress since innovation efforts are diverted to patent defense efforts.

I don't know about everyone else here, but I would love a conversation on a national scale to discuss jobs that don't move the country and humanity forward, but just move cash from one pocket to another without benefitting anyone but the people moving the money. Wall street financial innovations, patent litigation and the TSA are just three examples of areas that have experienced job growth in the past 20 years (even with the 2008 meltdown), but that do little to nothing to improve the human condition. For some reason, the more we automate jobs and increase the productivity of the American worker, the more we divert our attention to creating jobs that don't add value.

dllthomas6• 14 years ago

"[T]he zero-sum game [...] leaves society as a whole poorer."

That's not zero-sum.

TerraHertz• 14 years ago

"jobs that don't move the country and humanity forward, but just move cash from one pocket to another without benefiting anyone but the people moving the money."

The accumulation of such 'societal overheads', as entrenched systems act to grab more resources for themselves at the expense of everyone else, is a common factor in all civilizations. Specifically, it's a common factor in the process that ultimately leads to the collapse of complex societies.

Read the book 'Collapse of complex societies' by Tainter. It's a study of failed human societies throughout history, and the common factors in their process of collapse. Yes, it turns out there is a single, driving common factor. Complex societies go into violent, chaotic and permanent collapse, at the point when their available resources (of all kinds, including manpower, energy, knowledge, food, water, etc) become less than the resources required to maintain the social infrastructure. At that point there's a rapid structural implosion, with failing infrastructure leading to inability to allocate resources to maintain the infrastructure - a positive feedback process that bites hard. Usually, almost everyone dies.

The snowball can begin when some external challenge requires an extra expenditure of resources - which are not available. Or it can begin simply because the social structure grows too complicated and parasitic, thus exceeding physical limits. Human societies almost never seem to be able to collectively say "hey, we don't need all this useless crap, let's simplify!"

The patent system, copyright, and indeed most if not all of the Federal Government and related structures like the Federal Reserve Bank (three things it actually isn't) as they are now,are all examples of wasteful, parasitic overheads with net negative benefit to American society. Which are major factors bringing society closer to systemic collapse. The energy crisis is rapidly lowering the 'available resources' ceiling, while all these parasitic, self-serving layers of social/legal complexity are inexorably raising the required resource expenditure. Maybe these lines on the graph have already crossed - there's some inertia and lag in this process, but it's still a mathematical reality that can't ultimately be avoided.

Personally, I consider the entire legal framework of corporate personhood, stock holding and the abstractions of social responsibility, finance and control that creates, to be another massive layer of harmful complexity. Creating 'inhuman' immortal entities which then grow to direct most of society's resources and control most of the media and government structures, seems like a very, very bad mistake. The present insane state of the patent and copyright systems is merely a side effect of that more fundamental error.

By now the entire corrupt, self-serving octopus of corporate/government parasitism is probably too entrenched to 'simplify' back to a sensible, workable level via methods available within the existing system.

Personally, I'd say the optimal level for such things would be 'gone entirely'. I'm aware most would not agree. I've also long felt that without a second American Revolution, there's no chance of making any progress in cutting back these existence-threatening layers of self-serving complexity. Lately it seems like I'm not so entirely alone in that view.

anigbrowl• 14 years ago

Metric X is high, therefore disputed policy Y is boosting metric X.

Not what was actually claimed. Non-inhibition is not the same as a boost, now is it?

The head of the USPTO isn't even willing to have an intellectually honest debate on the subject. It's pretty clear that change is not going to come from within.

The USPTO doesn't make patent law. It's an administrative agency. The guy's main concern is servicing the ever-increasing number of patent filings, which are what finances his agency. If you want change, ask for the PTO to be funded by taxes instead of filing fees.

Gustomaximus• 14 years ago

It is not today's innovation I am worried about, it is tomorrows.

gavanwoolery• 14 years ago

Hmm...looks like a guy trying defend/validate his own job. Last I checked, people had no problem keeping up with innovation. I have yet to hear somebody say: "Slow down! We are innovating too rapidly!"

The patent system is a feeding trough for parasites, little more.

SkyMarshal• 14 years ago

I believe that's a form of the correlation proves causation fallacy, probably others as well.

noonespecial• 14 years ago

That's not how democracy works. When people don't like what's going on, they work until they change it. What they won't do is "give it a rest".

jeremiep4• 14 years ago

One could argue that we don't live in a true democracy. What we live in right now is much closer to fascism. I'd even go as far as to say that the concept of lobbying is a fascist idea.

This guy has huge ties to IBM, I'd have a very hard time believing he has the public's best interests in mind. He's more likely to pass laws which would help his rich friends instead.

Note that I'm not a strong believer of government to begin with. My rationale is that if society is anything like software development, management should be seen as counter-productive.

grecy• 14 years ago

> I'd even go as far as to say that the concept of lobbying is a fascist idea

The people living in democracies without lobbying wholeheartedly agree. We genuinely can't believe you let it happen.

brycec• 14 years ago

That's a little much, IMO. Lobbying is a right acknowledged in the Constitution[1]. We live in a republic, and yes it has more power than the government has ever had before, but we also have more freedoms than we've ever had before, at least in the US. Zimbabwe is actually a fascist country.

This guy is just a mundane man defending his existence. Nothing more, nothing less.

[1] The right to petition your government.

RyanMcGreal• 14 years ago

If not exactly fascist, it is certainly corporatist.

gwright• 14 years ago

The primary reason that lobbying is so pronounced is that we have a framework where micro-managing the economy is an accepted 'tool' of governance.

If you think that, in the abstract, the government should be able to favor/disfavor particular businesses (e.g. mandating Ethanol in gasoline, taxing tanning salons, prohibiting large sugary-drinks, etc) then the logical consequence is lobbying to ensure that your particular business is favored or at least not disfavored and that right (the right to petition the government) is built-in to our Constitution.

The way out of this mess is not to try to micro-manage lobbying (e.g. it is OK for a non-profit to lobby but not a for-profit or it is OK for individuals to lobby but not on behalf of a corporation) but instead to tackle the larger problem that governments should not be micro-managing the economy.

So argue for things like removing loopholes and special cases from our tax code, ditching all sorts of direct subsidies to favored entities (PBS funding, for example), and otherwise advocating for simple, consistent, and broad-based government policies rather than complex, inconsistent, and narrow government policies is the right direction, IMHO.

I'm not holding my breath, though.

mayneack3• 14 years ago

One man's bribery is another man's method to reach a real person in the government instead of a feedback form (like complaining on HN about some way you got screwed by google's automatic processes).

The good side of lobbying allows for some interest group, lets use the people who do commercial fishing in the gulf as an example, to pay attention to their interests and let someone know about problems in legislation they foresee or notice after the fact. Without them, each congressman (or some subset of them) would have to employ someone who knew a thing or two about marine/environmental biology to read all their legislation for ways that it could harm x. It's really unpopular for congress to spend money on itself, so this probably wouldn't happen and we'd ignore environmental impacts of a wide variety of things.

This, of course, is in theory. I whole heatedly agree that the balance of power between interest groups and of interest groups isn't at any sort of ideal point, but I can't see removing their ability to communicate with politicians as a good thing. Lobbyists do a whole lot more than just donate to crooked politicians.

diminoten• 14 years ago

Democracy is nine wolves and a sheep deciding what's for dinner. I for one am quite happy the US isn't a democracy (it's a republic).

swift2• 14 years ago

A republic is nine wolves and a sheep voting on who will decide what's for dinner. =)

gridaphobe• 14 years ago

I don't think anyone has been arguing that innovation is no longer happening, but rather that the mess of software patents is making it increasingly difficult for newcomers to enter the industry.

I also like how he completely dodged the question of whether software patents should be allowed at all, from a philosophical perspective..

ynniv• 14 years ago

In light of this compelling argument, I have changed my stance on software patents. Mission Accomplished, Mr. Kappos!

MattyRad• 14 years ago

This guy is the head of the Patent and Trademark Office? I think we can now see where part of the problem resides. "Envy of the world." He's either lying or blind.

erso• 14 years ago

Given that he was nominated to the post by the Obama administration and confirmed by the Senate, where should a grassroots movement to get him shucked out of office be directed?

mindslight• 14 years ago

Towards rejecting the entire autonomous bureaucracy he is but a small part of. However, given that most of the US is contentedly employed in service of the top-down government, agorism is the best bet.

tomrod4• 14 years ago

Lawsuits against bureaucratic offices is a good place to start. I wonder how much royalty-free software they use that has methods patented by someone else?

scotty792• 14 years ago

> "Our patent system is the envy of the world,"

I thought it was worlds lawyers wet dream and laughing stock of everybody else.

I can't remember one mention of US patent that was not grotesquely funny. I heard nothing of sorts about patents of any other country. The only thing I heard about those is that they are hard to get, expensive and short lasting.

rayiner10• 14 years ago

The about-face Silicon Valley has done on this issue in the last decade or two is pretty amusing. Back when Silicon Valley meant Microsoft making software and Sun making hardware, people ranted and tore their hair out over how lack of IP enforcement in developing countries was destroying innovation...

emu• 14 years ago

This is a problem with the blanket term "Intellectual Property". Intellectual property consists of many things, e.g. copyrights, patents, and trademarks.

You can be in favor of some without being in favor of all.

bediger40002• 14 years ago

Why is an about-face over the course of at least 10 years amusing (I presume in a sarcastic way)?

In 10 years, even crowds of people learn about the medium-term implications of legal doctrines. 10 years ago the implications of software or business method patents weren't all that obvious. Only a few radicals were warning against them - someone sold everybody else on an emotional basis.

"Intellectual Property" in haste, repent at leisure, as Ben Franklin might have written, if he had understood the implications 200+ years ago.

ori_b• 14 years ago

The two aren't mutually exclusive. IP needs to be enforced in order for our current system to work -- Even the GPL depends on copyright enforcement. On the other hand, if asinine patents and overly broad copyrights are handed out, then it becomes difficult for everybody.

Copyright needs to be enforced, but on a narrower set of IP. Patents should actually be innovative, unique, and original. Copyright should be specific, with broad fair use and protected status for parodies and satires.

rhizome2• 14 years ago

Well it depends on how he's defining "the world," right? I doubt anybody in the black hole of Calcutta thinks about the US patent system much.

pirateking• 14 years ago

Fuck this guy and fuck patents.

  That, as we enjoy great advantages from the inventions of others, 
  we should be glad of an opportunity to serve others by any invention of ours; 
  and this we should do freely and generously.

  - Benjamin Franklin

Bless Benjamin Franklin.

jeremiep4• 14 years ago

Thats how you create a better world for everyone. I'm pretty sure this guy wants to create a better world for his corporate friends only.

roadnottaken2• 14 years ago

As someone who works in the biopharmaceutical industry, I couldn't disagree with you more.

mayneack3• 14 years ago

While I realize that you're not saying the contrary, the "will of the founding fathers" isn't exactly anti-patent.

http://en.wikipedia.org/wiki/Copyright_Clause

That being said, the Constitution isn't some holy un-flawed document.

richcollins• 14 years ago

What he thinks we should do and what most people actually care about don't align. For every Tesla there are probably 1000 Edisons.

pmahoney• 14 years ago

We got his attention.

Now I'll write two letters per week.

nickik7• 14 years ago

I read your comment and smiled. Thank you for this. Have an upvote.

burgreblast• 14 years ago

Those who profit from patents will always support them.

The best way to undermine patentability is to publicly disclose the invention in advance, thereby creating prior art that no one can patent.

To me, the simplest solution would be "CantPatentThis.com" where you disclose your ideas/sketches. Think GitHub for ideas, not necessarily working code.

Thoughts?

nitrogen5• 14 years ago

There is Halfbakery (http://www.halfbakery.com/editorial/about.html), which I tend to avoid but have occasionally seen in Google search results and/or mentioned in online discussions.

tomrod4• 14 years ago

Sure, but it defeats the purpose of what the patent is getting at--rewarding an inventor and innovator for creativity in application of new principles. The whole intent of a patent is to give the holder a monopoly on the technology for a given time period so as to encourage innovation. The other shoe is a trade secret--publishing trade secrets would ensure literally no economic rents to the innovator.

Probably a better set of reforms that would solve a host of problems: * 5 year patent length limit * Nontransferability of patent (can't sell IP, say) * No software patents. If it's written in code, get a copyright.

charonn0• 14 years ago

If you want an honest assessment a company, business, or agency, don't ask the guy who stands to be fired if there's anything wrong.

hexagonc2• 14 years ago

It is difficult to get a man to understand something, when his salary depends upon his not understanding it! -- Upton Sinclair

ricardobeat• 14 years ago

> do we demand today's innovation on the cheap via a weaker patent system that excludes subject matter, or do we moderate today's consumption with a strong patent system so our children enjoy greater innovations?

Moderate today's consumption, what does that even mean? Save your innovations for the children? No, thank you, I don't want to slow down progress so that your friends can make more money.

kbutler• 14 years ago

He's asserting that the objections to patents are from consumers: Let me have this stuff without paying inventors (patent holders). (This would be bad because it reduces the incentive for innovation).

In my experience, the objections to patents are from innovators: Let me invent without paying people who have been trying to landgrab the intellectual frontier. (This is good because it reduces barriers to innovation).

jheriko• 14 years ago

Ignorance is bliss... or in his case a massively overpaid job that doesn't need to exist.

What a prick.

arocks• 14 years ago

Reminds me of a Sanskrit sloka roughly translated as:

The wealth that cannot be stolen, neither abducted by state, nor can be divided amongst brothers, Neither it is burdensome to carry, The wealth that increases by giving, That wealth is knowledge and is supreme of all possessions

Intellectual 'property' is an oxymoron. The treatment of knowledge like a physical asset in that, it must be possessed and contained, is an exercise in futility.

jivatmanx2• 14 years ago

None of his comments even address the problem of patent trolls. When legitimate tech companies such over patents, the obvious defense is to sue back. There is hope that they will realize the futility of the patent war and either do binding mediation or simply decide the war has to end.

Retaliatory defense doesn't work against trolls, who have nothing to defend. Even if the troll company folds for whatever reason, you can just pass the patents to another shell company and start again.

For the IBM lawyer and others saying that the patent system doesn't need reform because there were patent lawsuits 100 or so years ago, please cite an example of the trolls that Rockefeller, Edison faced.

ceautery• 14 years ago

No, I don't think I'll give it a rest. The patent system drives a business model where companies can produce no products, but instead buy patents and sue people. That's a grievance that people should petition redress of. Sorry, Kappos, until that business model isn't profitable, I'm going to keep bitching, in line with my first amendment rights.

jvehent• 14 years ago

They created a system where a government lawyer makes a law that corporate lawyers can use to make a lot of money. In return, the corporate lawyer pay taxes to the government so that the government lawyer can have a fancy title in a fancy agency.

This is lawyers talking to (and for) lawyers. This doesn't concern engineers or consumers.

SoftwareMaven• 14 years ago

I'm not going to lie, the patent office was the last place I expected a "think of the children" argument. And, just like every other time I hear that argument, I immediately feel that I'm being lied to and manipulated for somebody else's gain.

code_duck• 14 years ago

Reminds me of the DEA insisting that it's worth spending billions to 'defend' citizens from marijuana.

bjhoops12• 14 years ago

Let's get rid of this clown.

ronyeh• 14 years ago

Historical Patent Activity: http://www.uspto.gov/web/offices/ac/ido/oeip/taf/h_counts.ht...

From the OP: "The explosion of litigation we are seeing is a reflection of how the patent system wires us for innovation," Kappos said. "It's natural and reasonable that innovators would seek to protect their breakthroughs using the patent system."

Or maybe...it is natural to file patents as fast as possible to protect ourselves from an increasingly broken system?

It'd be nice if companies could be restricted on the number of patents they could file per year. Let's say a company with 1-10 people can file 1 patent per year. 11-100 people => 5 patents per year. 101-1000 people => 10 patents per year. 1001-10000 people => 50 patents per year.... Then maybe companies would only file their most important "breakthroughs."

Of course, this system would mean that we would have fewer patent prosecution lawyers, and maybe even fewer examiners.

bicknergseng• 14 years ago

>"innovation continues at an absolutely breakneck pace. In a system like ours in which innovation is happening faster than people can keep up, it cannot be said that the patent system is broken," he said.

Nice non-sequitur.

OldSchool3• 14 years ago

Having been shaken down a few times in business myself, I learned to call this threat "The Sword of Damocles."

To an extent your likelihood of a shakedown is tied to your market share, but not necessarily.

As a rational person your instinct that your work was developed independently and/or earlier or other well-known work is prior art is irrelevant to the parasites because they are not interested in facts, only money. You can only hope they don't try to kill the host.

Without naming names and amounts since settlements are bound by secrecy, I'd like to hear some (hopefully successful) battlefield stories of handling the dreaded troll letters and blind-side lawsuits?

suresk• 14 years ago

This is depressing to read, and I think he is wrong, but the more I think about this, the more I think reforming patent issuance is not going to be as helpful as we think.

Think about it - if the PTO stopped issuing software patents today, we'd still have over a decade of software patent litigation.

The real problem is our legal system - it is too expensive for a someone accused of patent violations to defend themselves. Even if you win, you are still going to be bankrupt or severely weakened by legal fees, and all you've "won" is the right to continue doing what you were doing in the first place. This is the only reason patent trolling is so successful - nobody can fight back.

Start requiring entities who file patent infringement (and other) lawsuits pay the defendants legal fees if they lose, and require an upfront bond (because otherwise they'd just sue with shell companies and declare bankruptcy if they lost). Everyone is going to be concerned about how this hurts the proverbial "little guy" and his ability to sue a big company that has taken his idea, but the little guy is already getting screwed by patent trolls - a big company like Google or Apple has the resources to fight patent litigation, but even one lawsuit is likely to be lethal for a small company. If the "little guy" is going to get hurt either way, I'd rather we tilt things to be in favor of the defendants.

bitops• 14 years ago

Honestly? Give it a rest? I'd usually try to write a more objective comment, but in this case it's pretty simple.

Not. Bloody. Likely.

manaskarekar4• 14 years ago

This is an idea my colleague suggested:

Form an alliance of companies that boycott people who abuse patents. All these companies pool in their patents and form a super patent alliance. Given a large number of patents, anyone who want to fuck around with patents gets black balled from the Super Patent Alliance.

Kliment• 14 years ago

That's how Intellectual Assholes... uh Intellectual Ventures got started. They are now probably the number one patent troll worldwide.

sageikosa2• 14 years ago

Here we see in action the big government mindset solution to big government induced problems, more big government. I for one, am not surprised, but I have read Ludwig von Mises' book "Bureaucracy".

Seriously, did anyone think a department whose "business" is to accept fees and keep patent examiners employed is going to shrink their market domain? There's plenty more regulatory jobs to be squeezed out of the innovation business to be had yet, this time on the back end.

nickik7• 14 years ago

Since you seam to have a intressted in this kind of thing I would recomond (if you dont know it) public choice theory.

Here are some awsome podcasts on the subject: http://www.econtalk.org/archives/public_choice/

There are also podcasts about Mises and many other intressting things on there.

sageikosa2• 14 years ago

Yes, that is interesting.

bpatrianakos2• 14 years ago

I'll be downvoted to hell for this but he has a point! We do need to let the new get a chance to work. Technology has changed everything and patent law just wasn't written to account for what's happening now. That's indisputable but it doesn't mean the whole system is broken.

I don't think anyone can say "yes the patent system is broken" or "the patent system works fine" definitively because it's not a cut and dry issue. You may argue that patents are a disincentive to innovation while others feels differently. It's really an ideological issue. It's subjective and not objective like people want to make it.

Furthermore, everyone out there yelling about how we need to rebuild the whole patent system from the ground up again or abolish it altogether are really the ones who need to give it a rest. We can't just rewrite all patent law or get rid of patents. That's like saying the US needs a new constitution. So much has been built on top of and around patent law that making such drastic changes would have ripple effects that would be worse than the original problem.

That said, I can't stand behind Kaposs' statement that pace of innovation is evidence of the patent system working. Did he even hear himself say that? What's his definition of innovation? Sure, we have lots of touch screen devices with different names coming out every single day but is that innovation? But really that's neither here nor there. The pace of innovation and the patent system working are wholly unrelated.

I also have an honest question. Why does everyone really want to reform/abolish our patent system? I mean, really. The real reason. Again, I swear its an honest question and I have an honest observation. To me, because no one has explained it to me yet, it seems like there are a few trendy startups and companies out there who got burned by the patent system. So then they threw a fit about patent reform. The HNers and Silicon Valley types picked up on this and now its the hip new cause to support. It reminds me of when being anti-copyright and pro-piracy became cool. They seem to have this really nice sounding ideology behind them that's very easy to adopt and so people do. But to me, these ideas, which in a perfect world would work out great, seem divorced from reality. In the case of startups/companies lobbying for this, don't you think that when they get to such a size where keeping the status quo would help them more than reforming patent law would that they'd drop their ideology and start throwing patent suits around like everybody else? I do. Because I would.

nickik7• 14 years ago

> or get rid of patents

We could, its in the right of goverments to do that.

> That's like saying the US needs a new constitution. So much has been built on top of and around patent law that making such drastic changes would have ripple effects that would be worse than the original problem.

Thats hard to predict and otherwise its a really bad argument. It remindes me of the argument against lowering inflation. Yes lowering inflation will always creat problems, sometimes even very bad ones but that is no reason to just keep going.

Taking a stand and hit the problem in the face, deal with the consequences and from there on build on a much more solid ground like we did in monetary policy.

> I also have an honest question. Why does everyone really want to reform/abolish our patent system? I mean, really. The real reason.

I for one think that it is simple a ineffective system that will just harm the economy and the social live more general (specially in the case of copyrights).

From a purly economicl view it seams clear that all form of IP are harmful. Resources that are not limted do not need a propery rights system. I can not prove this (and I think nobody can) the benefits from copying are much much greater then the benefits from improved insentive.

If you look at sientific discovery and innovation, how it works is many small steps and improving little by little. Revolutionary discoverys do not happen very often.

There are many reason this is specially true in practice. In the real world the patent system is ruled over by a goverment agency that is (like any goverment agency) subject to lobbying and other problems discribed in public choice theory (http://en.wikipedia.org/wiki/Public_choice_theory).

> don't you think that when they get to such a size where keeping the status quo would help them more than reforming patent law would that they'd drop their ideology and start throwing patent suits around like everybody else? I do. Because I would.

Sure they would. I would too. That is exactly why we have to change insentives. As long as the system is as it is people will have the same insentives (an we all know what these are).

The most importend economic book you will every read will just say "insentive matter" on every page.

bpatrianakos2• 14 years ago

Fair enough, good points. But do you kind of see what I'm getting at toward the end? You may have some strong beliefs on patent law but does everyone? Really? Is it just me or does anyone else see this as a bandwagon thing. The next hip cause to support. More people regurgitating something someone told them without reading up on it on their own. That sort of thing. Everything else aside, that's what bothers me most about this issue.

distant-uncle2• 14 years ago

> when they get to such a size where keeping the status quo would help them more than reforming patent law would that they'd drop their ideology and start throwing patent suits around like everybody else? I do. Because I would.

I wouldn't. For many of the "I shall take advantage of this system" person/company out there, there are thankfully examples to the contrary. Redhat. Google. Sun Microsystems (RIP).

I'm convinced that the reason this issue is being aired more often now, is because the greedy kind (the trolls and unscrupulous management of product/service companies) have overplayed their hand. They have gone a bit too far with all this aggression, and I for one am very glad to see people respond in kind.

asdfologist• 14 years ago

> I'll be downvoted to hell for this

This isn't reddit. Stop.

cloverich2• 14 years ago

> Why does everyone really want to reform/abolish our patent system? I mean, really.

The current state of software patents is such that a company can stock up, lawyer up, then sue out of existence any attempt at competition. They were invented to promote innovation, not stifle it. I honestly have a hard-time imagining any competent programmer standing behind half the garbage that passes for 'innovative' patents. It would be one thing if it were just patents that were not being used, but its taken to court, succesful cases that prove the point. One-click purchasing? One-box multiple search? Companies are patenting anything they can think of - the most obvious and minor of innovations - and succesfully pushing others out. That's anti-competitive in its aboslute purest.

> We can't just rewrite all patent law or get rid of patents. That's like saying the US needs a new constitution.

Most people aren't anti-patent et al - just anti software patents. A more apt analogy would be wanting to re-write a specific interpretation of a specific clause of the constitution.

> it seems like there are a few trendy startups and companies out there who got burned by the patent system.

Read more. Companies large and small regularly get burned by ridiculous patents. Like Android removing unified search (http://www.zdnet.com/samsung-galaxy-s3-loses-unified-search-...). That's absurd.

If companies were providing actual evidence of specific, long-term, expensive investments that resulted in software innovation, with a compelling case that it would not have been invented otherwise (aka a high school coder couldn't possibly mimic it), then yeah, maybe I coudl see a justification. But the current "just show us that there's not other patents out there that did this alreadY" can only be justified by one means: "I'm a lawyer, and I want to make a good living". Case in point - David Kappos.

MemorableZebra• 14 years ago

You'd be surprised how far and deep the problem goes. I would also argue that it's not just limited to software patents in particular, but it's become common practice for many companies to create patents for anything they can imagine. This has resulted in a deluge of patents that have to be sorted out by the USPTO, and therefore a lot of bad, should-be-invalid patents get okayed.

Here's a perfect example of a bad patent screwing a company out of a product they've been making for years: http://luma-labs.com/blogs/news/4540122-an-open-letter-to-ou...

(Summary: Competitor gets an illegitimate patent approved, and now a company that has been "infringing" on that patent since before they applied to get it has to stop making their product. Why? Because litigation will likely put them out of business, even if they win.)

I'm not against the idea of patents, but the direction they've been going in recently, in fact the direction our entire economy has been going in recently, has been that of favoring those with the money to blow on hordes of lawyers capable of interpreting and navigating the legal minefield they themselves have lobbied to create.

jedberg• 14 years ago

I met David a few weeks ago to talk about patents and software. I have to say that coming out of that meeting I felt a lot better about things than going in.

He has good intentions. He worked hard to get provisions in the new law that would allow his office to fix the most egregious problems.

They are opening the first satellite patent office in San Jose specifically to address software and technology hardware patents.

I have to agree with him -- we need to give the new laws a chance to work. They just went into effect a few months ago.

jonmc12• 14 years ago

Intentions may be good, AIA may be better than previous. But, when we have public officials that can't even articulate logically how patents enhance / protect innovation, there is a bigger problem.

It's the hill-climbing problem, and empty rhetoric, illogical propaganda and protection of special interests is preventing a policy that is far better for innovation, and the country, as a whole.

romanows• 14 years ago

He might be a good guy who has chosen to work within the system, and he might be defending the system to strengthen his influence over others that are also in the system.

But there's no reason software patent critics should believe that he's solving the problems, given the history of patents in the US and the contents of this article. What he should say: "'Amazon one-click' is a low-quality patent", "we judge XX% of software patents to be low-quality", and "our reforms will reduce this to Y%". Until then, keep making noise.

heliosvc• 14 years ago

It's true that the new law needs a chance. And it's true that all or the vast majority of politicians and bureaucrats have good intentions and want things to work. And it's unfortunately a reality that someone who is part of the system (head of the PTO!) has to protect and defend the system.

The problem is that software patents are in fact fundamentally broken. Think about it this way: does it make sense that the patent rules should be the same in fields as different as software/web/internet and pharmaceuticals/biotech -- where the innovation cycle, product lifecycle, and R&D costs are so dramatically different? If we had to design the patent system from scratch, would we put in place the same rules?

The reforms may help a little on the margins. But more fundamental change is needed in the software arena.

dmgrow• 14 years ago

My view is perhaps a bit limited because I'm in the software industry. Are other industries represented fairly well by the current laws and is it only the software industry that are demanding changes?

Though government is adept at yielding to special interest and industry groups, fundamental change may be difficult to hope for if the software industry is the lone voice at this point.

jbail• 14 years ago

Agree with a small correction: The first USPTO satellite office opened was in Detroit. After that, the USPTO announced plans to open offices in Denver, San Jose and Dallas/Fort Worth.

http://www.denverpost.com/politics/ci_20981965/denver-get-u-...

vacri• 14 years ago

"Our patent system is the envy of the world"

I'd really like to meet the people who sit around envying a patent system. I mean, seriously, how many people can there be that understand patent systems to the detail required to separate the US one out from other first-world nations (since this comment really is a jab at contemporary nations), who then sit around envying it?

malachismith• 14 years ago

The money quote, "Rather than engage in this empirical debate, or even acknowledge its existence, Kappos acted as though it was self-evident that stronger patents always create a larger incentive for innovation."

And, of course, we have copious illustrations of how he is wrong (and how he is right). So perhaps we should spend the time to determine if patents "always create a larger incentive for innovation" or not.

donbronson• 14 years ago

> [Kappos] argued would allow the patent office to weed out low-quality software

I wonder how he would define "low-quality software"

Nux• 14 years ago

The chief is an idiot.

shmerl• 14 years ago

Yeah, software patents should be given a rest - an eternal rest.

Innovation happens in spite of the sick patent system. Not because of it. I.e. if not for the system, innovation could have been even faster.

> Indeed, Kappos suggested that the volume of patent litigation in the smartphone industry was a sign that the patent system was working as intended.

This is lunacy. He suggests that the point of the patent system is increased litigation? He should look in the constitution more often.

xer0x• 14 years ago

What terrible news.

jimrandomh• 14 years ago

Transcript of the actual speech: http://www.uspto.gov/news/speeches/2012/kappos_CAP.jsp

He doesn't seem to understand what's going on or why we're angry.

rorrr• 14 years ago

He is either corrupt or incompetent (or both).

datashaman2• 14 years ago

This sounds to me like he's protecting his own income. The American patent system is the envy of the world. I Loled.

Vivtek3• 14 years ago

Well, I guess I know who's part of the problem, then.

hexagonc2• 14 years ago

I think part of the problem with patents for software is precisely the point that has been made again and again -- software is much closer to mathematics than any other type of patent. If you have a large group of people who are smart and tackling the same software problem, then the nature of the problem itself will often funnel them all toward similar solutions. I mean, there is a thing in software engineering called refinement which is the process of reducing a software requirement specification into working code. In some cases, this can even be done mechanically with CASE tools. Since the optimal code for achieving a particular goal is often a logical (or near logical) necessity of the goal itself, it's hard to see what innovation is really being protected by software patents. It seems to me that where the innovation is actually occurring is in the very act of noticing that a problem needs solving in the first place. But that is not what is patented.

EDIT: Just to clarify my last few sentences. Software patents seem to reward the wrong thing. It seems to me that the innovation occurs in the very act of specifying the requirements for the software. In a sense, the software that best implements the requirement is less a creative invention and more of a discovery. Now, I agree that there should be some kind of reward/prize/compensation for companies that choose to pursue unusual goals but I'm not sure that patents are it. Favorable market position may be reward enough.

maked00• 14 years ago

Patents are evil. They are simply a way for predatory one percenters and lawyers to steal from society.

Look at the fashion industry. Thriving and innovating, with 0 patents.

Trademarks Yes / Patents No

US patent chief to software patent critics: "Give it a rest already"

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