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> 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

> 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.''
- vy8vWJlco 14y 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.
jeffdavis 14y 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.
- Nursie 14y 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.
  - jeffdavis 14y ago
    Sure, there are arguments to be had, and I would tend to agree with you that (at least in some sectors) we stand to gain more than lose. But the commenter to whom I replied called the patent chief "intellectually dishonest", and I think that's a strong statement and not adequately supported.
    - Nursie 14y ago
      Well, it's either intellectually dishonest or intellectually lazy IMHO, because without some sort of backing argument you've just got someone trying to pass off a simple correlation as some sort of evidence of his argument - innovation is good, innovation happens and patents also happen, therefore patents are good. He's either avoiding any/all arguments in that area or ignorant of them.
- rohern 14y 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-among-tech-giants-can-stifle-competition.html?pagewanted=all http://www.nytimes.com/2012/10/08/technology/patent-wars-amo...
stephengillie 14y 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 14y 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.
- rayiner 14y 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.
  - nitrogen 14y ago
    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. As I'm sure you are aware, not everyone thrives in conflict. Some would much rather design a system to prevent it. I can't help but feel that this is similar to claiming that there must be a lot of fun happening on the school playground, because a lot of bullies are beating up the kids who just want to get along (and, occasionally, other bullies).
    - rayiner 14y ago
      Conflict is an unavoidable consequence of human interaction. There are various things you can do to make conflict resolution as quick and efficient as possible, but ultimately if you have X interactions between people, some fairly stable percentage of those interactions will result in conflict that requires litigation to mediate. A more apropos playground analogy might be skinned knees. They are of course not a good thing in and of themselves, but if you have a bunch of kids running around and running into each other, you're going to get skinned knees. The more kids you have running around and the more active they are, the more trips to the nurse's office there are going to be. You can make the playground safer, tell kids to be more careful, etc, but at the end of the day kids getting playground injuries is correlated with kids playing.
IanDrake 14y 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].
- manaskarekar 14y 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.
  - 4rgento 14y ago
    I know you are joking, but I don't think this is a bad idea nor an imposible one.
    - javajosh 14y ago
      The problem is that patent examiners are limited as to the sources they can consult for prior art. I don't know precisely what they are.
  - dpatrick86 14y ago
    Dude, that's brilliant. This idea needs some sort of presentation, video, early prototype or something to make it go "viral."
  - jlgreco 14y ago
    > In IP geek circles, Manfred is legendary; he's the guy who patented the business practice of moving your e-business somewhere with a slack intellectual property regime in order to evade licensing encumbrances. He's the guy who patented using genetic algorithms to patent everything they can permutate from an initial description of a problem domain – not just a better mousetrap, but the set of all possible better mousetraps. Roughly a third of his inventions are legal, a third are illegal, and the remainder are legal but will become illegal as soon as the legislatosaurus wakes up, smells the coffee, and panics. There are patent attorneys in Reno who swear that Manfred Macx is a pseudo, a net alias fronting for a bunch of crazed anonymous hackers armed with the Genetic Algorithm That Ate Calcutta: a kind of Serdar Argic of intellectual property, or maybe another Bourbaki math borg. There are lawyers in San Diego and Redmond who swear blind that Macx is an economic saboteur bent on wrecking the underpinning of capitalism, and there are communists in Prague who think he's the bastard spawn of Bill Gates by way of the Pope. Excerpt from Accelerando by Charles Stross (cstross). Emphasis added. I would love to see some sort of legal patent pool that grants free licenses only to entities that either do not have patents themselves, or which have granted licenses for all of their patents to other members of the pool. The trick of course is getting such a pool to a critical mass that joining it and licensing all your patents to it becomes worth it.
themgt 14y ago
"Not a bear in sight. The Bear Patrol must be working like charm."
mtgx 14y 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.
malandrew 14y 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.
- dllthomas 14y ago
  "[T]he zero-sum game [...] leaves society as a whole poorer." That's not zero-sum.
  - Avenger42 14y ago
    The lawyers are getting richer.
    - nealabq 14y ago
      David Kappos was an IP lawyer at IBM before moving to the Patent Office. He's an insider who has benefited from and built a career around IP litigation. I'm sure he sees his profession as worthy and noble. Certainly not parasitic and destructive. A stout defender of the status quo. http://en.wikipedia.org/wiki/David_Kappos http://en.wikipedia.org/wiki/David_Kappos
anigbrowl 14y 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 14y ago
It is not today's innovation I am worried about, it is tomorrows.
gavanwoolery 14y 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 14y ago
I believe that's a form of the correlation proves causation fallacy, probably others as well.

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.''

vy8vWJlco 14y 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.

jeffdavis 14y 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.

Nursie 14y 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.
- jeffdavis 14y ago
  Sure, there are arguments to be had, and I would tend to agree with you that (at least in some sectors) we stand to gain more than lose. But the commenter to whom I replied called the patent chief "intellectually dishonest", and I think that's a strong statement and not adequately supported.
  - Nursie 14y ago
    Well, it's either intellectually dishonest or intellectually lazy IMHO, because without some sort of backing argument you've just got someone trying to pass off a simple correlation as some sort of evidence of his argument - innovation is good, innovation happens and patents also happen, therefore patents are good. He's either avoiding any/all arguments in that area or ignorant of them.
rohern 14y 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-among-tech-giants-can-stifle-competition.html?pagewanted=all http://www.nytimes.com/2012/10/08/technology/patent-wars-amo...

stephengillie 14y 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 14y 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.
rayiner 14y 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.
- nitrogen 14y ago
  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. As I'm sure you are aware, not everyone thrives in conflict. Some would much rather design a system to prevent it. I can't help but feel that this is similar to claiming that there must be a lot of fun happening on the school playground, because a lot of bullies are beating up the kids who just want to get along (and, occasionally, other bullies).
  - rayiner 14y ago
    Conflict is an unavoidable consequence of human interaction. There are various things you can do to make conflict resolution as quick and efficient as possible, but ultimately if you have X interactions between people, some fairly stable percentage of those interactions will result in conflict that requires litigation to mediate. A more apropos playground analogy might be skinned knees. They are of course not a good thing in and of themselves, but if you have a bunch of kids running around and running into each other, you're going to get skinned knees. The more kids you have running around and the more active they are, the more trips to the nurse's office there are going to be. You can make the playground safer, tell kids to be more careful, etc, but at the end of the day kids getting playground injuries is correlated with kids playing.

IanDrake 14y 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].

manaskarekar 14y 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.
- 4rgento 14y ago
  I know you are joking, but I don't think this is a bad idea nor an imposible one.
  - javajosh 14y ago
    The problem is that patent examiners are limited as to the sources they can consult for prior art. I don't know precisely what they are.
- dpatrick86 14y ago
  Dude, that's brilliant. This idea needs some sort of presentation, video, early prototype or something to make it go "viral."
- jlgreco 14y ago
  > In IP geek circles, Manfred is legendary; he's the guy who patented the business practice of moving your e-business somewhere with a slack intellectual property regime in order to evade licensing encumbrances. He's the guy who patented using genetic algorithms to patent everything they can permutate from an initial description of a problem domain – not just a better mousetrap, but the set of all possible better mousetraps. Roughly a third of his inventions are legal, a third are illegal, and the remainder are legal but will become illegal as soon as the legislatosaurus wakes up, smells the coffee, and panics. There are patent attorneys in Reno who swear that Manfred Macx is a pseudo, a net alias fronting for a bunch of crazed anonymous hackers armed with the Genetic Algorithm That Ate Calcutta: a kind of Serdar Argic of intellectual property, or maybe another Bourbaki math borg. There are lawyers in San Diego and Redmond who swear blind that Macx is an economic saboteur bent on wrecking the underpinning of capitalism, and there are communists in Prague who think he's the bastard spawn of Bill Gates by way of the Pope. Excerpt from Accelerando by Charles Stross (cstross). Emphasis added. I would love to see some sort of legal patent pool that grants free licenses only to entities that either do not have patents themselves, or which have granted licenses for all of their patents to other members of the pool. The trick of course is getting such a pool to a critical mass that joining it and licensing all your patents to it becomes worth it.

themgt 14y ago

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

mtgx 14y 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.

malandrew 14y 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.

dllthomas 14y ago
"[T]he zero-sum game [...] leaves society as a whole poorer." That's not zero-sum.
- Avenger42 14y ago
  The lawyers are getting richer.
  - nealabq 14y ago
    David Kappos was an IP lawyer at IBM before moving to the Patent Office. He's an insider who has benefited from and built a career around IP litigation. I'm sure he sees his profession as worthy and noble. Certainly not parasitic and destructive. A stout defender of the status quo. http://en.wikipedia.org/wiki/David_Kappos http://en.wikipedia.org/wiki/David_Kappos

anigbrowl 14y 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 14y ago

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

gavanwoolery 14y 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 14y ago

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