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

330 points by sciwiz 14y ago

bpatrianakos 14y 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.
- nickik 14y 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 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.
  - bpatrianakos 14y 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.
api 14y ago
Self-serving bureaucrat defends his niche...
swohns 14y 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.
- rayiner 14y 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.
  - Locke1689 14y 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.
    - rayiner 14y ago
      No, patents and copyrights and other things too. One major Chinese telecom company used to copy the equipment of one major US telecom company down to the English silk screening on the circuit boards. Who wants to do all the expensive design work for a Chinese company who is then just going to undercut you with lower prices through cheap labor?
      - Locke1689 14y ago
        OK, but you seem to be supporting my point... The example you gave is copyright violation. My claim (poorly worded the first time) is that patents are not what most companies are worried about -- they're more concerned with copyright, trade dress, and trademark.
reitzensteinm 14y 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.
- deleted 14y ago
  [deleted]
- manaskarekar 14y ago
  Somewhere in a patent-free parallel universe humans are flying around in cars.
  - adestefan 14y ago
    Because patents are the only thing holding back flying cars.
    - datashaman 14y ago
      And guy-ropes.
- MereInterest 14y 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.''
noonespecial 14y 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".
- jeremiep 14y 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 14y 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.
    - ezy 14y ago
      I don't want to argue for lobbying, which can get pretty sickening at times, but I suspect other major democracies just aren't as blatant. How does your democracy remove corporate bribes from the equation? How do people, in aggregate, push specific issues with their legislators?
      - algorias 14y ago
        >How does your democracy remove corporate bribes from the equation? How do people, in aggregate, push specific issues with their legislators? By voting for all issues directly, like it's done here in switzerland. Other systems where you vote people into office to do the actual decision making for you can hardly be called democracies in comparison.
gridaphobe 14y 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. 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 14y ago
In light of this compelling argument, I have changed my stance on software patents. Mission Accomplished, Mr. Kappos!
MattyRad 14y 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 14y 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 14y 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.
- tomrod 14y 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?
scotty79 14y 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.
- rayiner 14y 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 14y 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.
  - bediger4000 14y 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.
    - rayiner 14y ago
      I think that's a bit of historical revisionism right there. Nobody sold Silicon Valley 1.0 on IP protection "on an emotional basis." The companies were just tired of doing free R&D for the Chinese.
pirateking 14y 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.
- jeremiep 14y 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.
  - roadnottaken 14y ago
    As someone who works in the biopharmaceutical industry, I couldn't disagree with you more.
    - dickbasedregex 14y ago
      Surely you must be trolling.
      - surfmike 14y ago
        Pharmaceuticals are an area where patents seem most justified. Companies need to spend years of R&D to find a specific compound that helps cure disease, and then need to recoup the costs over years. I definitely feel software patents hinder innovation more than help it, but I would be worried about less investment put into drug discovery if the patent system were completely abolished.
      - roadnottaken 14y ago
        Not trolling. I work in biotech. This industry lives and dies on IP. It literally costs hundreds of millions of dollars to run clinical trials and most of them fail. If someone else can come along and make a knock-off of your product and steal your profit then there's no incentive to run them. The whole model of the pharmaceutical industry relies on ~15-20 years of patent protection. People certainly play games with patents in biopharma, too, but without some form of IP protection you wouldn't get new drugs. Simple as that.
pmahoney 14y ago
We got his attention. Now I'll write two letters per week.
- nickik 14y ago
  I read your comment and smiled. Thank you for this. Have an upvote.
burgreblast 14y 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?
- nitrogen 14y ago
  There is Halfbakery (http://www.halfbakery.com/editorial/about.html 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.
- tomrod 14y 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 14y 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.
- hexagonc 14y ago
  It is difficult to get a man to understand something, when his salary depends upon his not understanding it! -- Upton Sinclair
ricardobeat 14y 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 14y 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 14y ago
Ignorance is bliss... or in his case a massively overpaid job that doesn't need to exist. What a prick.
arocks 14y 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.
jivatmanx 14y 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 14y 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 14y 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 14y 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 14y ago
Reminds me of the DEA insisting that it's worth spending billions to 'defend' citizens from marijuana.
bjhoops1 14y ago
Let's get rid of this clown.
ronyeh 14y ago
Historical Patent Activity: http://www.uspto.gov/web/offices/ac/ido/oeip/taf/h_counts.htm 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 14y 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.
OldSchool 14y 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 14y 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 14y 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.
manaskarekar 14y 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 14y ago
  That's how Intellectual Assholes... uh Intellectual Ventures got started. They are now probably the number one patent troll worldwide.
sageikosa 14y 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.
- nickik 14y 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/ http://www.econtalk.org/archives/public_choice/ There are also podcasts about Mises and many other intressting things on there.
  - sageikosa 14y ago
    Yes, that is interesting.
    - nickik 14y ago
      He had like 5 nobel laureates on there, including Milton Friedman with 96 and Ronald Coase with 102.
jedberg 14y 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 14y 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 14y 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 14y 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.
deleted 14y ago
[deleted]
vacri 14y 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?
teflonhook 14y ago
No.
xer0x 14y ago
What terrible news.
malachismith 14y 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 14y ago
> [Kappos] argued would allow the patent office to weed out low-quality software I wonder how he would define "low-quality software"
jimrandomh 14y ago
Transcript of the actual speech: http://www.uspto.gov/news/speeches/2012/kappos_CAP.jsp 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 14y ago
  He is either corrupt or incompetent (or both).
Nux 14y ago
The chief is an idiot.
shmerl 14y ago
Yeah, software patents should be given a rest - an eternal rest. > 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 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.
datashaman 14y ago
This sounds to me like he's protecting his own income. The American patent system is the envy of the world. I Loled.
Vivtek 14y ago
Well, I guess I know who's part of the problem, then.
hexagonc 14y 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 14y 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

330 points by sciwiz 14y 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.

nickik 14y 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 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.
- bpatrianakos 14y 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.

api 14y ago

Self-serving bureaucrat defends his niche...

swohns 14y 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.

rayiner 14y 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.
- Locke1689 14y 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.
  - rayiner 14y ago
    No, patents and copyrights and other things too. One major Chinese telecom company used to copy the equipment of one major US telecom company down to the English silk screening on the circuit boards. Who wants to do all the expensive design work for a Chinese company who is then just going to undercut you with lower prices through cheap labor?
    - Locke1689 14y ago
      OK, but you seem to be supporting my point... The example you gave is copyright violation. My claim (poorly worded the first time) is that patents are not what most companies are worried about -- they're more concerned with copyright, trade dress, and trademark.

reitzensteinm 14y 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.

deleted 14y ago
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manaskarekar 14y ago
Somewhere in a patent-free parallel universe humans are flying around in cars.
- adestefan 14y ago
  Because patents are the only thing holding back flying cars.
  - datashaman 14y ago
    And guy-ropes.
MereInterest 14y 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.''

noonespecial 14y 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".

jeremiep 14y 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 14y 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.
  - ezy 14y ago
    I don't want to argue for lobbying, which can get pretty sickening at times, but I suspect other major democracies just aren't as blatant. How does your democracy remove corporate bribes from the equation? How do people, in aggregate, push specific issues with their legislators?
    - algorias 14y ago
      >How does your democracy remove corporate bribes from the equation? How do people, in aggregate, push specific issues with their legislators? By voting for all issues directly, like it's done here in switzerland. Other systems where you vote people into office to do the actual decision making for you can hardly be called democracies in comparison.

gridaphobe 14y 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. 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 14y ago

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

MattyRad 14y 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 14y 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 14y 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.
tomrod 14y 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?

scotty79 14y 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.

rayiner 14y 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 14y 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.
- bediger4000 14y 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.
  - rayiner 14y ago
    I think that's a bit of historical revisionism right there. Nobody sold Silicon Valley 1.0 on IP protection "on an emotional basis." The companies were just tired of doing free R&D for the Chinese.

pirateking 14y 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.

jeremiep 14y 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.
- roadnottaken 14y ago
  As someone who works in the biopharmaceutical industry, I couldn't disagree with you more.
  - dickbasedregex 14y ago
    Surely you must be trolling.
    - surfmike 14y ago
      Pharmaceuticals are an area where patents seem most justified. Companies need to spend years of R&D to find a specific compound that helps cure disease, and then need to recoup the costs over years. I definitely feel software patents hinder innovation more than help it, but I would be worried about less investment put into drug discovery if the patent system were completely abolished.
    - roadnottaken 14y ago
      Not trolling. I work in biotech. This industry lives and dies on IP. It literally costs hundreds of millions of dollars to run clinical trials and most of them fail. If someone else can come along and make a knock-off of your product and steal your profit then there's no incentive to run them. The whole model of the pharmaceutical industry relies on ~15-20 years of patent protection. People certainly play games with patents in biopharma, too, but without some form of IP protection you wouldn't get new drugs. Simple as that.

pmahoney 14y ago

We got his attention. Now I'll write two letters per week.

nickik 14y ago
I read your comment and smiled. Thank you for this. Have an upvote.

burgreblast 14y 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?

nitrogen 14y ago
There is Halfbakery (http://www.halfbakery.com/editorial/about.html 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.
tomrod 14y 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 14y 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.

hexagonc 14y ago
It is difficult to get a man to understand something, when his salary depends upon his not understanding it! -- Upton Sinclair

ricardobeat 14y 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 14y 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 14y ago

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

arocks 14y 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.

jivatmanx 14y 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 14y 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 14y 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 14y 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 14y ago

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

bjhoops1 14y ago

Let's get rid of this clown.

ronyeh 14y ago

Historical Patent Activity: http://www.uspto.gov/web/offices/ac/ido/oeip/taf/h_counts.htm 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 14y 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.

OldSchool 14y 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 14y 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 14y 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.

manaskarekar 14y 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 14y ago
That's how Intellectual Assholes... uh Intellectual Ventures got started. They are now probably the number one patent troll worldwide.

sageikosa 14y 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.

nickik 14y 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/ http://www.econtalk.org/archives/public_choice/ There are also podcasts about Mises and many other intressting things on there.
- sageikosa 14y ago
  Yes, that is interesting.
  - nickik 14y ago
    He had like 5 nobel laureates on there, including Milton Friedman with 96 and Ronald Coase with 102.

jedberg 14y 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 14y 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 14y 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 14y 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.

deleted 14y ago

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vacri 14y 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?

teflonhook 14y ago

No.

xer0x 14y ago

What terrible news.

malachismith 14y 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 14y ago

> [Kappos] argued would allow the patent office to weed out low-quality software I wonder how he would define "low-quality software"

jimrandomh 14y ago

Transcript of the actual speech: http://www.uspto.gov/news/speeches/2012/kappos_CAP.jsp 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 14y ago
He is either corrupt or incompetent (or both).

Nux 14y ago

The chief is an idiot.

shmerl 14y ago

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

datashaman 14y ago

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

Vivtek 14y ago

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

hexagonc 14y 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 14y 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