> 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.<p>Metric X is high, therefore disputed policy Y is boosting metric X.<p>If more people understood the inanity of this line of argument, the world would be a much better place.<p>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.
Fuck this guy and fuck patents.<p><pre><code> 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
</code></pre>
Bless Benjamin Franklin.
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.<p>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.<p>They are opening the first satellite patent office in San Jose specifically to address software and technology hardware patents.<p>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.
> "Our patent system is the envy of the world,"<p>I thought it was worlds lawyers wet dream and laughing stock of everybody else.<p>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.
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.
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.<p>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.<p>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.<p>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.<p>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.
Reminds me of a Sanskrit sloka roughly translated as:<p><i>The wealth that cannot be stolen,</i>
<i>neither abducted by state,</i>
<i>nor can be divided amongst brothers,</i>
<i>Neither it is burdensome to carry,</i>
<i>The wealth that increases by giving,</i>
<i>That wealth is knowledge</i>
<i>and is supreme of all possessions</i><p>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.
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.<p>Think about it - if the PTO stopped issuing software patents today, we'd still have over a decade of software patent litigation.<p>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.<p>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.
> 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.<p>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.<p>I also like how he completely dodged the question of whether software patents should be allowed at all, from a philosophical perspective..
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.<p>This is lawyers talking to (and for) lawyers. This doesn't concern engineers or consumers.
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?
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".<p>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.
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.
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.
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.
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.<p>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.<p>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.
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 <i>refinement</i> 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.<p>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 <i>discovery</i>. 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.
Historical Patent Activity: <a href="http://www.uspto.gov/web/offices/ac/ido/oeip/taf/h_counts.htm" rel="nofollow">http://www.uspto.gov/web/offices/ac/ido/oeip/taf/h_counts.ht...</a><p>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."<p>Or maybe...it is natural to file patents <i>as fast as possible</i> to protect ourselves from an increasingly broken system?<p>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."<p>Of course, this system would mean that we would have fewer patent prosecution lawyers, and maybe even fewer examiners.
Those who profit from patents will always support them.<p>The best way to undermine patentability is to publicly disclose the invention in advance, thereby creating prior art that no one can patent.<p>To me, the simplest solution would be "CantPatentThis.com" where you disclose your ideas/sketches. Think GitHub for ideas, not necessarily working code.<p>Thoughts?
Yeah, software patents should be given a rest - an eternal rest.<p><i>> 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</i><p>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.<p><i>> Indeed, Kappos suggested that the volume of patent litigation in the smartphone industry was a sign that the patent system was working as intended.</i><p>This is lunacy. He suggests that the point of the patent system is increased litigation? He should look in the constitution more often.
Having been shaken down a few times in business myself, I learned to call this threat "The Sword of Damocles."<p>To an extent your likelihood of a shakedown is tied to your market share, but not necessarily.<p>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.<p>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?
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."<p>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 <i>if</i> patents "always create a larger incentive for innovation" or not.
> 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?<p>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.
This is an idea my colleague suggested:<p>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.
Transcript of the actual speech: <a href="http://www.uspto.gov/news/speeches/2012/kappos_CAP.jsp" rel="nofollow">http://www.uspto.gov/news/speeches/2012/kappos_CAP.jsp</a><p>He doesn't seem to understand what's going on or why we're angry.
>"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.<p>Nice non-sequitur.
Patents are evil. They are simply a way for predatory one percenters and lawyers to steal from society.<p>Look at the fashion industry. Thriving and innovating, with 0 patents.<p>Trademarks Yes / Patents No
<i>"Our patent system is the envy of the world"</i><p>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?