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USPTO Head: Current Patent Litigation Is 'Reasonable' 153

Posted by Soulskill
from the patent-lawyers-everywhere-agree dept.
elashish14 writes "David Kappos, head of the USPTO, today provided a strong defense of the patent system, particularly in the mobile industry. In his address, he implored critics, 'Give the [America Invents Act] a chance to work.' He then went on to proclaim the 'absolutely breakneck pace' of innovation in the smartphone industry and that the U.S. patent system is 'the envy of the world,' though he was likely only referring to the envy of the world's lawyers. Perhaps the most laughable quote from his address: 'The explosion of litigation we are seeing is a reflection of how the patent system wires us for innovation.'"
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USPTO Head: Current Patent Litigation Is 'Reasonable'

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  • Re:Sigh (Score:4, Informative)

    by MightyMartian (840721) on Tuesday November 20, 2012 @03:30PM (#42045393) Journal

    I'm sure from one of the many fine firms that supply patent attorneys.

  • Incomplete Story (Score:5, Informative)

    by eddeye (85134) on Tuesday November 20, 2012 @03:42PM (#42045549)

    The Ars Technica piece is very slanted, pulling quotes our of context. Here's the full text of the speech itself: http://www.uspto.gov/news/speeches/2012/kappos_CAP.jsp [uspto.gov]

    For instance, compare these quotes, which give a very different perspective:

    "But it is equally important that patent protection be properly tailored in scope, so that programmers can write code and engineers can design devices without fear of unfounded accusations of infringement. And we know that inconsistency in software patent issuance causes uncertainty in the marketplace and can cause threats of litigation that in turn can stifle innovation and deter new market entrants."

    "Software experts have long observed that programming is incremental in nature, with modest improvements not worthy of patent protection. KSR gave us the ability to recognize this valid observation and incorporate it in our examination process."

    "Should we just accept the problems, given the importance of the innovation and the illogic of discriminating against great technology that happens to be implemented in software? Of course not. The right point of inquiry is quality. By getting that right, we grant patents only for great algorithmic ideas worthy of protection, and not for everything else. This administration and its innovation agency understand that low-quality patents do no good for anyone. Low quality patents lead to disputes, uncertainty, and lost opportunity. Quality is central to our mission. All of this especially for software."

    "One such initiative has already begun crowdsourcing searches for software prior art. It's called Ask Patents and is an online network hosted by Stack Exchange, where software experts engage in robust discussions of possible prior art for given applications, then submit the best prior art along with helpful commentary."

    "You know, the history of software patents is not a perfect one, although things are improving. Some of the most troublesome patents have expired; others can be challenged with new post-grant proceedings; and newer patents are quantifiably clearer, and aligned with current legal standards."

    "For those who feel more needs to be done, we encourage you to keep reaching out to us at the USPTO, as well as to other actors who also have an important role to play. The USPTO administers the laws, while Congress and the courts write the laws and interpret them, respectively. Working together, we can find the right balance for software patents. We can find a balance that ensures market certainty, encourages investment and research and product development, and guarantees that patents issued going forward are appropriately tailored."

  • Re:Sigh (Score:4, Informative)

    by Anon-Admin (443764) on Tuesday November 20, 2012 @03:43PM (#42045567) Homepage Journal

    They get nominated by the people you vote into office.

    Kappos was vice president and assistant general counsel of intellectual property law, for IBM Corporation. (wikipedia) So he is a patent lawyer. He was nominated by the Whitehouse for the position in 2009. So he is one of Obama's Nominations.

    I am all for baring lawyers from holding public office. It is a conflict of interest to put a lawyer in charge of making laws or running a government agency that has regulatory authority over anything.

  • by NotSanguine (1917456) on Tuesday November 20, 2012 @03:55PM (#42045715) Journal

    Everything looks like a nail.

    This guy runs the USPTO. What's he going to say? "We've really cocked things up and need to rethink our IP framework." I think not. The real incentive here is for Kappos to give the impression that what his organization is doing makes a positive difference, whether it does or not.

    I'm not against IP, I'm against the *insane* IP framework that's in place in the US.

    Sadly, we're not likely to see any positive change since our legislators are all firmly in the pockets of the corporations who use our incredibly unfair IP to stifle innovation and ensure fat profits.

    This situation reminds me of how Ambrose Bierce, in his superior lexicon, defined an 'alliance':

    ALLIANCE, n. In international politics, the union of two thieves who have their hands so deeply inserted in each other's pockets that they cannot separately plunder a third.

    I submit that this is true in domestic as well as international politics.

  • by MickyTheIdiot (1032226) on Tuesday November 20, 2012 @03:58PM (#42045757) Homepage Journal

    I put "IP" in quotes. This is because these items are not property. It abuses the word property. Only one person can own a piece of property and billions can have the same idea. It's the wrong term to use for these items. There needs another term coined.

    The whole thing needs to be rethought. Throw out the term "Intellectual Property" and go back to the constitutional reasoning behind why it was created in the first place.

  • by Nyder (754090) on Tuesday November 20, 2012 @04:12PM (#42045925) Journal

    https://en.wikipedia.org/wiki/David_Kappos [wikipedia.org]

    Only reason he likes the patent system, imo.

  • by Tontoman (737489) * on Tuesday November 20, 2012 @04:30PM (#42046149)

    . . . if the head of the office is trying to use smartphones as an example of patents inspiring "innovation", he is... an idiot, quite frankly (or a liar, either way, not trustworthy).

    On the other hand, the Patent system works well when viewed in its historical context. They have been a net benefit for innovation. . For example, there are many fewer patents lawsuits regarding Smart Phones than there were in the time the original telephone was invented. Here is a god article: http://www.forbes.com/sites/forbesleadershipforum/2012/02/09/no-the-patent-system-is-not-broken/2/ [forbes.com]
    What we need is general legal reform so that disputes can be decided simply and inexpensively without Lawyers getting all the goodies.

  • by s.petry (762400) on Tuesday November 20, 2012 @06:21PM (#42047695)

    Apologies for the bluntness, but you are blind either intentionally or otherwise. Nest is a prime example of blocked innovation as a start. How about you do some research on how many companies have been sued out of business due to patent litigation? Very very few people are innovating currently. Hell I have some project work that I'd love to pursue for Unix LDAP, but at present I don't feel like being hunted down by Oracle's attorneys, Redhat's attorneys, Microsoft's attorneys, Novell's attorneys, or any of the thousands of patent troll companies that have a patent on user interface, scripting techniques, coding techniques, etc.. that would hunt me down as soon as I started trying to peddle a product.

    The person you posted to was absolutely correct. If you don't see how the system is failed you simply have not bothered to look.

  • by langelgjm (860756) on Tuesday November 20, 2012 @11:40PM (#42050947) Journal

    I was at the CAP event this morning, and I wouldn't say the Ars story is that slanted. Did Kappos say that there is absolutely no improvement to be made to the US patent system? No. Are there some positive things going on at the patent office? Yes. However, he frankly came off as a total hack. Here is why:

    He led off with a statistic about how "IP intensive industries" account for 40 million jobs, and 35% of GDP. Even if you accept the methodology behind those numbers, the vast majority of the jobs and GDP come from trademark intensive industries (e.g., retail) rather than patent intensive industries (or copyright). I called him on this in the Q&A, and he gave a politician's response (e.g., a non-answer).

    He kept mentioning how "critics" don't have the "facts" but failed to even once suggest why high-profile innovative companies like Google are critical of software patents.

    He claims that "Our founding fathers enshrined patent rights in our Constitution, an affirmative right here, that in other countries is only issued grudgingly. It’s one of the few, if not only, clauses in the Constitution that gives Congress the right to create personal property." This is inaccurate. The Constitution mentions that Congress has the power to secure to inventors their discoveries for limited times. It does not say that this must be done through patents, and it certainly does not analogize whatever method Congress chooses to property.

    He claimed that "our IP system is the envy of the world." Well, I've actually talked to European Commission officials about what they think of our patent system, and they don't share his view. Actually, much of the world doesn't want our ultra-strong IP laws. Maybe he meant to say our "economy" is the envy of the world (although that's also a hard sell). He also seemed to think that our system was best because it was strongest... shockingly, I think there are a lot of people who don't think that strongest = best, yet he doesn't address this.

    Essentially the bulk of his logic boils down to a post hoc, ergo propter hoc fallacy: The U.S. has software patents, the U.S. has software innovation, therefore the software innovation must come from the software patents. This is logically false, and I would also argue empirically false.

A CONS is an object which cares. -- Bernie Greenberg.

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