Last fall, then-PTO Director David J. Kappos delivered a speech on software patents, the PTO, and innovation, in which he strongly defended software patents. Below, Director Kappos, now with Cravath, Swaine & Moore, summarizes an article that he recently published in the Stanford Technology Law Review that expands on that theme. – Jason
"Investing in America’s Future Through Innovation" appearing in the Stanford Technology Law Review
By: David J. Kappos
While the smart phone patent wars have ignited debate about the patent system, the discussions are about far more than smart phones and software patents. These disputes, and the accompanying critiques, raise a more fundamental question about the willingness of the United States to invest in our future. We Americans need to make up our collective mind about whether we are satisfied with short-term gratification to get the newest technology at the absolute lowest price or whether we are willing to invest in the long-term. At their core, patents, and intellectual property in general, represent that investment.
Drawing on recent patent quality metrics, my article appearing in the Stanford Technology Law Review brings balance to the heated rhetoric surrounding the smart phone patent wars, explaining why the best evidence available shows that these disputes are not about low quality software patents or an ineffective patent system. In fact, and in contrast to the many critiques that offer no empirical evidence, the data shows that low quality patents are not the problem. Instead, the real issue is the historical tension between the necessary long-term incentives that form the basis for the patent system, versus the desire of consumers to have products and services today at the lowest prices possible. To move beyond the rhetoric of the current debate, we must continue to have faith in allowing our national innovation system to grow and develop as it has over 200+ years so that we and our children will have even more, and better, innovations to enjoy in the future.
The article is available on the Stanford Technology Law Review's website at: http://stlr.stanford.edu/2013/05/investing-in-americas-future-through-innovation/
“A sword to pierce the SHIELD: those commercializing are the ones who are victimizing the industrious inventors.”
Worth repeating.
“are nukes for use against any new companies”
A point that the White House pr0paganda piece misses.
And then, it’s tears for ‘users’ and a veiled attempt to install Infringer’s Rights.
See link to patentlyo.com
and what Reyna said (in dissent) at pages 10 and 11, which culminates in
“invite mischievous entities to lay hidden along the pathways of discovery, and to waylay industrious and deserving inventors, by laying claim to their ingenuities through commercialization.”
You’re describing a patent small claims court (1-5 million claim limit) headed by a registered patent attorney as judge. I fully support that proposal.
There’s no need for the taxpayers to pay. The PTO is already self funding if we’d just stop fee diversion.
BTW, quit comparing yourself to “the 1%”. That’s why you’re a miserable, unhappy liberal. Look at how good you DO have it, and imagine if you were the guy that came up with a million dollar idea, and could actually monetize it. I work with those people. Quit trying to make everyone else as miserable as you are.
Because I know that to be the case. I represent a lot of startups, and I used to represent Apple and Microsoft. I’ve been on both sides. Apple and Microsoft just want to keep upstarts out. Their own patents are nukes for use against any new companies. Their worst fear is i4i; being sued by someone they blatantly ripped off. They can’t get away from that. They might be able to put them out of business, but they can’t avoid paying them their due….. until they get the mindless minions like you to support rigging the system in favor of the entrenched.
I wished they purchased it. If you don’t immediately have the resources to sue, they’re more likely to just rip off the independent inventors. Without these patent assertion entities, many small guys would have been completely sunk.
Ned,
This tactic of accuse-others-of-what-you-do does not work for Malcolm. Why do you think it will work for you?
Seriously consider how many conversations I have tried ever so patiently to hold your hand and get you to discuss a point made. And now you claim it is I that refuse to engage? Your legendary evasion and trainwrecking of conversations is not only known, but we have uncovered exactly why that happens – haven’t we? Your third party interests are against the written rules of posting here – but, as this is not my blog, all I can do is point this out and say C’est La Vie.
The lack of intellectual honesty from you is frightening.
Engage in anthropomorphication and the exception to the printed matter doctrine. Just once.
Anon, your refusal to engage in anything but platitudes is legendary.
Ned, this is the type of mob appeal that sickens me. Are you telling us that represented information has no structure? So, the machine just behaviors differently with the same structure?
You see with innovation the challenge is to grow you mind to understand new things. The intellectually dishonest on this board want to try and make mob appeals by trying to tie new technology to old concepts.
Questions and directions from Ned, but the points raised remain unanswered.
Ned, the silence from you is deafening.
Anon, you read a claim that has as a element price in terms of units. It says add the price of one widget to the price of another and divide by 2.
A man has two widgets. Does he infringe?
How much money does he have if he is in Rome on the day Julius Caesar died?
Anon agrees that music is not eligible for patenting. Now does he agree that price is also not eligible?
Anon, the smallest unit of digital information is a bit.
Describe its structure.
Try this one:
link to patentlyo.com
“6, you are the “ta rd”. You guys want to kick up all this dust where you interpret the Beauregard claims differently than one of ordinary skill in the art would interpret the claim.”
Whoa whoa whoa brosefus. I’m quite generous in my claim constructions, if you guys want to jimmy around with the claim construction then I have no problem with it. If it happens to be a big change to the claim language then I’ll insist that you put the change in the claim (thus if you put your GP computer in the claim, it will become vastly less valuable, but at least you’ll have a leg to stand your argument on).
“And, yes, what I said was right. The Beauregard claim would read on a general purpose computer loading the instructions. Phrases such as “to cause a computer” are often included in Beauregard claims.”
So then the computer in your hypo is the “medium”? Is that what you’re trying to get at? Because I don’t mind that what so ever. Or are you just trying to say that the computer is stuck in edgewise where the medium is something other than the computer? Either way I don’t mind, though I’d likely make you put that in more explicitly if you wanted the construction.
“The fact is that you guys want to interpret the Beauregard claim to be something that one of ordinary skill in the art would say it is NOT.”
We do? Here I thought we were just giving your claim their literal scope as you drafted them. Your desire now to fall back on “magic” in a special construction that you don’t want to put in the claim is typical of software nonsense, but we can work through it to the ultimate destruction of your claims anyway. NP brosensky. I will literally let you write down your construction on the record and set everything straight. In fact, you can write down a hypo right now if you’d like and I’ll look it over.
“We have the Lemley (a true black heart) telling us how to interpret software”
I’m no fan of Lemley’s plan for 112 6th either.
“I still need to read that liar’s paper on functional claiming.”
It is actually better than you might think. I recommend going ahead and reading it.
“you will figure out how one skilled in the art would interpret the claims.”
Oh I most certainly do, I most certainly do. Which is why I give them their literal interpretation, since that is PRECISELY HOW THEY WILL BE ENFORCED.
“I know my list of enemies is growing long.”
That should be an indication that perhaps they aren’t all so bad, and you’re simply vilifying them in your mind. Grow some self-awareness bro.
Likewise, I have to wonder why you think that abolishing software patents will primarily benefit the 1%. It may well be, but the people I see truly chafing under the patent system are the small time guys trying to start up a business. I literally wonder why you think MS etc. would not use their patents to crush the small guys just as surely as they would use their other might.
“So your solution is to further increase the cost of patent acquisition and patent enforcement, and reduce the availability of patents for new ideas altogether?”
My “solution”? To the situation where it is nigh impossible to become a 1%er based on patenting things? Brother that’s like asking for my “solution” to the situation where it is nigh impossible to become a 1%er any other way.
Though, if I were to hazard a way to make the patent system into something of that sort (which in this day and age I’m afraid I don’t necessarily support) then I would propose for the government to take on the task of paying the bills at the PTO, and likewise paying at least a basic amount for a small amount of enforcement by small inventors and likewise keeping patent trials involving a small time guy fairly simple (perhaps at the tradeoff for reduced royalties).
Still I’m not convinced that this would 1 be a good thing or 2 something we should necessarily do either way.
Actually, Reiner, Motorola is a great example of patent providing an incentive for innovation. Without their patent portfolio which is the result of billions invested in researchers, research labs, and innovation, Motorola would have gone through bankruptcy and been worthless but for a few small divisions.
But, the patent portfolio saved them, and—if you have any type of fair mind at all–you will realize that it has just provided a huge incentive for research at all corporations and it has shown that there is worth in the product of the research.
It is nearly criminal again for the federal government to had said that the sale of Motorola was an example of patent problems. It is the toxic left and the right wing corporate groups that have banded together to burn down our patent system.
Another vacuous post by Malcolm.
Attaboy, your creativity underwhelms yet again.
As you are one of two people who have gratuitously used the n-word on this blog, I’d say that your accuse others of that which you are is in high gear.
The ‘obsession’ happens to fit, sorry you are having such a hard time with it.
Not.
Maybe you can get out of the communistic mindset (especially being in a profession dedicated to providing such property rights – the dissonance shows through your posts), hmmm, maybe…?
are you advocating that we should return to slavery?
Are you? Serious question, Gramps. I don’t know anyone else so obsessed with “Hanoi Jane” who isn’t an ignorant bigot from the dark ages of the 20th century.
There is nothing but Malcolm FAIL on that thread
H U MPTY HAS SPOKEN! BOW DOWN!!
the position I had long advocated.
LOL. Show us the “advocacy”, H umpty.
link to patentlyo.com
RB,
Someone who has posted (like you) with the agenda of eliminating all patents (and not even just software patents) has very little credibility about ‘knowledge about patent economics.’
Thanks, but no thanks to your version of ‘knowledge.’
Kappos naturally is a patent-idealist. He ignores solid complaints by leading IT firms. Typically firms buy huge “bags” of patents without even thinking of using their contents unless needed for a patent war. That is the reason why Google bought Motorola. I recall a similar argument from Nokia’s VP “intellectual property”, Ilkka Rahnasto here in Europe.
I get tired from the “broken record” playing the same tune again and again, relating patents directly to R&D investments. Kappos is a lawyer with suprisingly little knowledge about patent economics.
6, you are the “ta rd”. You guys want to kick up all this dust where you interpret the Beauregard claims differently than one of ordinary skill in the art would interpret the claim.
And, yes, what I said was right. The Beauregard claim would read on a general purpose computer loading the instructions. Phrases such as “to cause a computer” are often included in Beauregard claims.
The fact is that you guys want to interpret the Beauregard claim to be something that one of ordinary skill in the art would say it is NOT. Just like this functional claiming business. We have the Lemley (a true black heart) telling us how to interpret software. But, I am one skilled in the art and Lemley and your arguments are not in accordance with the what one of ordinary skilled in the art would interpret the claims.
I still need to read that liar’s paper on functional claiming. I would bet $1 million dollars that there will be a glaring lie in the “scholarly” paper.
So, get it, boy. You apparently can get away with interpreting the claims however your little mind decides to interpret them, but if you want to be a person that respects the law you will figure out how one skilled in the art would interpret the claims. You are becoming as filthy as Lemley, Stern, the commie Posner, Mayer, and Lourie. I know my list of enemies is growing long. But, I take heart that the list is full of liars, black hearts, mud rolling pigs that don’t care about patent law.
“You still need to recite the distinguishing structural features.”
LOL – you mean like reciting ‘isolated’ or ‘purified?’
You failed the Grand Hall experiment and as to being ‘quite vocal,’ meh, you have been quite inconsequential.
“now we welcome you to our side, 6. For you recognize a change and pray tell what is that change?”
You misunderstand my “only the medium does”. Here let me spell it out for you. “only the medium does need to be prior art”. In this case, Brittany’s old CD is within the realm of prior art as it was published in 1998 iirc.
The change I recognize is a change in the unclaimed computer.
…and by machine, I mean the classification which includes the machine components…
(so don’t be pedantic)
The machine is being compared to what when these patent doctrines are under discussion?
Hint: the word anthropomorphication is critical here.
C’mon 6 – this is a slow softball right down the middle of the plate.
LOL – just like him. He’s getting closer to his wanna-be friends at techdirt, the ones who don’t want any IP protection (which is exactly what Big Corp wants them to think).
The march of the lemmings continues.
I was wrong then? And “made to be quite”? Because I seem to remember having been quite vocal all these long years on this very subject.
Well by all means, state the point ta rd.
Do you know what 102 and 103 say?
If you did, you wouldn’t be saying these things.
You were wrong then and made to be quiet with the Grand Hall experiment. This ‘revival’ is evidently linked to INANE’s improper presentation of the exceptions to the written matter doctrine.
(hint: he is so far off that is it is a passable impersonation of you)
So your solution is to further increase the cost of patent acquisition and patent enforcement, and reduce the availability of patents for new ideas altogether?
Think on that a bit. You’re campaigning for the 1% while pretending to be some altruistic hippie, LOL. Hypocrite.
LOL – calling someone a re re and QUITE missing the point.
Its humorous how clueless you are 6.
No really.
I know the cases – obviously much better than the errant misrepresentations going on here, 6.
Nobody “in the field” “interprets” a claim to a medium that expressely discludes reciting a computer to include a general purpose computer. They are drafted specifically to not include such you ta rd, so that the infringer doesn’t have to be making/selling/using a computer.
Great link Malcolm – on par with your post to the Office integration takeaway from Prometheus.
There is nothing but Malcolm FAIL on that thread – and the best part is that you FAIL in response to several different people.
You love this self-defeat thing, don’t you? You really are a throwback link to en.wikipedia.org
“You have been caught in the web of deceit spun by INANE ”
Um, I came to the conclusion myself brosef. 5 years ago, remember?
link to schoolphysics.co.uk
Um that’s how. Ya re re.
And that’s Malcolm aka Francis aka Keeping It Real aka Hypocrite, btw.
Or better yet, just read the thread after the oral arguments, wherein Malcolm danced his frenetic retakes and ended up EXACTLY at the position I had long advocated.
LOL
“No. We are not. You are misstating the exception to the written matter doctrine.”
Um, yes, actually we are. If you don’t know this you need to read the cases on the matter brosef.
“A functional relationship – even a “passive” carrying one is enough.”
That’s you arguing out your ar se, not what the lawl ever went ahead and said.
“the status quo”
Is that the same as controlling law, per chance?
LOL – that’s pretty ‘persuasive argument.’
Much better than the paper table pounding policy dreck you have been imagining.
“You only refuse to acknowledge the problems because you fancy yourself intellectually superior to some strawman “iron-age thinkers”.”
Indeed, and he piggy backs on the backs of people that came no doubt before the office on bended knee and asked them to hook them up with something because, I paraphrase, “there must be some way to claim this”! Thus the office hooks them up, and then this guy is all like but I’m so much smarter lololololol!
link to patentlyo.com
If you want to see Hu mpty aka “anon” aka Spammy McFilter “explaining” his “theory” on the Myriad case, just read this thread. It’s a classic example of Spammy’s blogtrolling and his contribution of “substance” here.
“New things.”
Allegedly new things. When they’re before me, they’re simply making allegations of newness. Try to keep this in mind.
“They by definition are not the same as old things or they not be innovation.”
Which I wholeheartedly agree with. Which is why I always throw in a 102 for good measure for every claim to a cd.
“But, with this new technology the structure cannot be seen by our naked eyes”
FOR GO D’S SAKE BUY A MICROSCOPE ALREADY then. OR DRAW A FKIN PICTURE. I did, but then it got delivered to my old address 🙁
“6, the medium has structure that is the instructions. ”
Granted, which is why I don’t 101 B claims out of the gate every single time. I will accept that proposition just for lolz.
“The structure of the medium is functionally related to the computer. ”
Right, where “the” computer is left out of the claim though.
“It is analogous to putting a gear into a machine.”
I quite agree. Which is why we make you draw such gears when you submit an application. And also why we make you structurally distinguish your gear every single time UNLESS in the one tiny situation where your gear does something that no other gear ever made can. I doubt those are often invented though, and claims to mediums should be just as rare.
“”I can’t see the structure so it doesn’t exist,””
Nah bro, if you put an app before me you’ll run right smack dab into the opposite thinking. It’ll be the ol’ “I can’t see the structure because you haven’t drawn it so here have an objection to your drawings” thinking. And then we’ll have a discussion regarding whether or not you have shown enough species to warrant my granting you a functional claim to that entire functionally recited genus of structures, aka whether or not you truly have shown possession of the entire functionally recited genus. Then we will discuss why britney spear’s first album isn’t capable of performing the same function as your recited medium provided I manipulate the unclaimed computer. And when you inevitably find that your application fails on all fronts we’ll have a discussion about what to do with your claim.
the structure is defined just as well as it is in other art fields.
No, it’s not. Other art fields claim compositions by reciting new distinguishing structure, not new functions.
One skilled in the art knows how the function can be implemented
That might be appropriate if the claim were to a method of writing software for a computer. But it’s not relevant for a composition. All specifications must teach one skilled in the art how to make and use a new composition of matter. Just because you do that in the specification does not entitle you to a claim that covers all compositions with the recited functionality. You still need to recite the distinguishing structural features.
his again is the appeal to the mob.
It’s called a “persuasive argument.” I’ve suggested that you come up with some of your own but instead you and anon want ‘the mob’ to accept that the status quo is reasonable and justified only because (1) you say so and (2) because software engineering will cease and children will die if take your beloved patents away. Good luck with that.
“Because you say so.”
No. Because the law says so. As a matter of FACT (and that, quite literally, so it is spin proof)
Shall we discuss this in detail and hav eyou provide yet another admission that torches your agenda?
LOL
Read Alappat and come back Malcolm – your example here is nothing but smoke and mirrors, mere blatherings unconnected to reality.
“Whether or not that’s true, it’s beside the point.”
It’s true.
I show you a computer. You hit the ‘O’ key and an asterix appears on the screen.
I show you another computer, appearing identical in every way, even when viewed under a microscope. You hit the ‘O’ key and an ampersand appears on the screen.
Is it “wrong” to doubt that the two computers are different?
The rest of your qq’ing is so pointless
Sure it is, Hu mpty. Because you say so.
On what? The cure vs. the treatment “industries”? Shouldn’t be hard to find this data Ned, it is plastered all over the net, but if you’re sure you can’t find it then I will find it for you.
Progress is finding better ways for Malcolm to polish his nice shiny hat.
Another vacuous post by Malcolm.
Attaboy.
Nah – the commie bit is enough.
Progress is building train tunnels to help fight back the rise of the oceans?
LOL – sure, let’s go with that.
Funny thing – that’s what you said before the the Myriad briefs came out and before the oral arguments thereof (which saw you jump to exactly that ‘Nobody knows what the f–k you are talking about’ viewpoint.
That feigned and projected ignorance is something Francis and Keeping It Real like to use too.
Imagine that (LOL).
your current path of self-immolation
LOL.
Weirdest. Blogtroll. Ever.
Way to torch your agenda a bit more.
Nobody knows what the f—k you are talking about, Hu mpty. Maybe it’s time to get your prescription checked.
Hey, Big Dave, if you want to do something for the children, you should recognize what actual progress looks like:
link to philly.com
If only we had issued more train patents, we could have had more nice things like this. Or so it works in Big Dave’s World.
Jane Fonda
Maybe later Grandpa will share his views about “longhairs” and their “loud jungle music.”
It’s the functional claiming crusade merry-go-round instead…
I think the Question is not the support of start ups and protecting their products but the control of patent attorneys and their constant efforts to not only cover the products of their clients but the cover the products of everybody else through functional claiming etc.
Four answers in a row to 6, while my points remain long unanswered – the ech0 chamber is alive and well and the silence is deafening.
Let’s trot out the business method crusade merry-go-round yet again…
6, I do think that Kappos wants to avoid hard questions by insisting that software is an industry. The problem is Not software as an industry, but business method patents and patents that claim automating old techniques, or applying them to the Internet and the like.
And like your typical turn-it-around move, the shame is your shame.
There is no shame for you, if you were to find a career that you could do without this cancerous-soul-eating-self-h@tred of yours.
On the other hand, there is shame in your current path of self-immolation when you know about it. And like the controlling law regarding exceptions to the printed matter doctrine, we both know you know about it.
Every day you keep 1ying to yourself by staying in a profession you find reprehensible is another day you do damage to yourself.
This self-immolation of yours is not a virtue. It is a perversity.
Dopey, the structure is defined just as well as it is in other art fields. One skilled in the art knows how the function can be implemented which defines the structure.
Just as when in the mechanical arts someone recites a hinge (functional), one of ordinary skill in the art knows the structures that could be used.
Really, MM, your statements are false. This again is the appeal to the mob. Because this is a bit hard to understand you try to appeal to ignorant mob mentality, which unfortunately has turned into more than half the federal circuit.
How slimey can you get, MM? Just think about how false and silly your statements are to try and push your agenda. Shame befalls you.
Still no answer.
I’d light to see your data on this. On its face it does not pass the smell test.
“Whether or not that’s true, it’s beside the point.”
It’s true.
it’s a fact
It’s very much on point. That’s exactly why the ‘issue’ is a charade – it’s an agenda that is outside the bounds of the law.
The rest of your qq’ing is so pointless as to not be worth bothering with.
Tr-llboy: >you sure go to great lengths to avoid answering a very simple question
What possible point is there in telling you whether my email has a spam filter, Tr-llboy? There isn’t one. It doesn’t affect your incredible, blatant l i e about law firms using mailroom staff to screen and destroy registered letters sent to attorneys which discuss applications those attorneys are handling.
It’s okay to feel ashamed. You should feel ashamed. Maybe just own up to your mistake, then you can crawl into your hole and die with a clear conscience.
“I prosecuted through the Age of Darkness or whatever you call it and there was no discernable difference in the allowance rate”
LOL – We’ve heard of your ‘perfect’ rate (with useless picture claims) in a field that had one of the worst ‘quality’ ratings in posts by Prof. Crouch – which only means that the rest of the practitioners in your art unit must have an even lower quality rate.
Way to torch your agenda a bit more.
I agree with Kappos that patents are necessary to protect startups.
I think that what Kappos said here was that patents are necessary to protect start ups that Venture Capital will fund.
You show no understanding of exactly why Kappos needed to make his “quality does not equal reject” stance.
The only reason Kappos needed to make that stance was because he wanted to please his “clients” (and future clients).
I prosecuted through the Age of Darkness or whatever you call it and there was no discernable difference in the allowance rate if you weren’t trying to peddle computer-implemented cr-p.
just because the human eye cannot see the new structure of the programmed computer/new machine, it would be wrong to doubt that very FACT that a new machine it is.
Whether or not that’s true, it’s beside the point.
In every other art (with one trivial and likely soon-to-expire exception) we require the structural difference between allegedly “new” compositions and old compositions to be recited in the claim. I can’t claim “A new hammer, wherein said hammer cures chapped palms” and it’s not responsive to wave my hands around and say “But it’s wrong to doubt that it’s a new hammer because I say that it cures chapped palms.” Even if I brought in a working example of such a hammer, it still wouldn’t justify a claim to a “A new hammer, wherein said hammer cures chapped palms.”
a machine is not a person – it does not think. It does not read – that is, in the sense that the mental steps doctrine would forbid.
Please try to understand, Hu mpty, that this is (more or less) the issue being disputed. You can repeat your conclusion over and over and type ANTHROPORMORPHOWHAEVER but it doesn’t really persuade anybody that the result is correct.
Like many others (e.g., Judge Moore), you want to believe that inserting the term “computer” in a claim should act as a shield against any attacks under 101. That fact is that in 2013 (and for many years prior to that), a computer is simply a proxy for a human brain. If there’s any doubt about that, just take a look at all the claims where the recitation of a computer is perfunctory to the invention (e.g., claims where the Examiner recognized a bona fide 101 problem and the term “computer” or some similar language was inserted to avoid it).
It would also be helpful for you to consider the policy underlying the so-called mental steps doctrine and “printed matter” doctrine (note: the latter applies not just to printed matter, but all types of information) and how those policies might be subverted by allowing the term “computer” to save otherwise ineligible (or obvious) claims.
Note that a distinction can be drawn, possibly, between claims to (1) software or hardware that does fundamentally (or less than fundamentally, in most cases) alter the manner in which a computer processes information, and (2) other “modifications” which amount to nothing more than giving a new name to the information that the computer is processing. If I were on “your side”, I’d focus on protecting (1) because (2) is going to get flushed down the t–let very soon.
Thanks Brian, but successful people don’t take economic advice from admitted communists LOL.
“open” this, “open” that, LOL. Translation: We should all serve the collective for the good of the collective. I’ll serve my God, my family, and my community, in that order, just like everyone else with a brain in their head.
To be fair, are you advocating that we should return to slavery?