Director Kappos’s Speech on Software Patents, the PTO, and Innovation

By Jason Rantanen

Last week, Director of the USPTO David Kappos delivered a keynote address to the Center for American Progress that focused on software patents and the smartphone "patent wars."  The speech is noteworthy for the Director's strong defense of software patents. The entire speech is worth reading – here are a few excerpts to induce you to read the full speech:

Software patents, like all patents, are a form of innovation currency. They are also ecosystem enablers, and job creators. The innovation protected by software patents is highly integrated with hardware. All of it must remain eligible for protection. The current software patent “war” is hardly the first patent war—and unlikely to be the last in our nation’s patent history. Whenever breakthrough technologies come onto the scene, market players find themselves joined in the marketplace by new entrants. The first instinct of the breakthrough innovators is to bring patents into play. This is not only understandable, it is appropriate. Those who invest in breakthrough innovation have a right to expect others to respect their resultant IP. However, in the end, as history has shown time and time again, the players ultimately end up agreeing to pro-consumer solutions via licenses, cross-licenses or joint development agreements allowing core technologies to be shared.

***

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

So we’ve been working on the underlying drivers for software patent quality from the beginning. Knowing that you get what you measure, starting in the summer of 2009 we assembled a taskforce to devise a comprehensive new set of quality metrics. That work culminated in 2010, when we rolled out the most complete, broad, objective patent quality measurement system on the planet – seven metrics, which we report eagerly to the public. The Lexus of quality metrics. And what do those metrics show? Patent quality isn’t broken at all. In fact, our decisions on both allowances and rejections correctly comply with all laws and regulations over 96 percent of the time.

***

You know, the history of software patents is not a perfect one, although things are improving. Some of the most troublesome patents have expired; others can be challenged with new post-grant proceedings; and newer patents are quantifiably clearer, and aligned with current legal standards. But it’s important to note that, during the so-called smartphone patent wars, innovation continues at breakneck pace. A system like ours, in which innovation is happening faster than consumers can keep up, cannot fairly be characterized as “broken”. Nor can it be said that the U.S. is just a receiver of all this innovation. Most of the innovation is taking place right here. Broken? What?

The fact is, the explosion of innovation—and follow-on litigation—that we see across consumer electronics hardware and software is a direct reflection of how our patent system wires us for innovation. It's both natural and reasonable that in a fast-growing, competitive market, innovators would seek to protect their breakthroughs using our patent system.

The full version of Director Kappos's speech is available here: http://www.uspto.gov/news/speeches/2012/kappos_CAP.jsp

 

 

127 thoughts on “Director Kappos’s Speech on Software Patents, the PTO, and Innovation

  1. From Mr. Kappos’s prepared remarks: “…the courts have consistently upheld the patentability of software as a general proposition.”

    I’ll take his opinion of the law over that of this site’s anonymous wankers any day. You know who you are.

  2. because otherwise nobody would invest the incredible sums of money requred to “invent”

    Sorry MM, the “but for” canard was retired a long time ago. That simply is not a requirement for obtaining a patent in this reality.

  3. It only remains to say amen to that. It is hoped that this sectio of the speech, together with its context as explained by Dave Kappos, will in future be rotinely cited in patent-eligibility cases

    1. A computer-controlled scalpel, wherein said scalpel is controlled by a computer running a very special algorithm, wherein said very special algorithm minimizes unwanted damage to the patient.

    So awesome! And so important to hand out patents on every computer-controlled scalpel comprising that algorithms because otherwise nobody would invest the incredible sums of money requred to “invent” those super special algorithms and we’d all be using sharp rocks to perform surgery on ourselves.

    Here’s my question for Kappos: if these “algorithms” are so awesome and worthy of patent protection, then he should gladly submit to his next surgery being performed with a scalpel controlled by a computer with that algorithm, regardless of any other aspect of the software or machinery. I mean, an ordinary programmer could write the software employing the software without undue experimentation so … let’s just let an ordinary programmer do that. Shouldn’t take more than a few hours to write the program since the algorithm is so very special. Will Kappos submit to the surgery using a scalpel and the software employing the algorithm written by any ordinary programmer? Or would Kappos prefer that his surgery be performed by a particular embodiment that, um, actually works?

  4. MM” “Please identify the “technical” problem and “technical” solution in the claim below:”

    Hello MM:

    The technical problem is determining if the claims are “integrated” and the solution is “Integration Analysis”.

    Using the Courts line of 101 cases as the lens thru which to define exactly what “integration” is, and most importantly when claims are “integrated” it is apparent that a process claim has a clear presumption of “Integration” and the presumption remains valid, and requires no further analysis under 101 unless the claims as a whole recite;

    1. A bare Court created Judicial Exception, (derived implicitly from the Congressional Statute of 101) or

    2. The first element of the claim is a bare Court created Judicial Exception, (derived implicitly from the Congressional Statute of 101) followed by additional steps that apply the Judicial Exception. In the case of the latter, extra-solution analysis, (pre or post ) occurs to determine if the claims are integrated. What follows is a brief synopsis of how the Court has applied “Integration Analysis” in each of the 101 cases.

    Benson = (Non Integrated)

    Reason/Analysis: Begins with a bare Court Created Judicial Exception of an algorithm followed by additional steps that apply the the Judicial Exception. Extra solution ( pre or post ) analysis required.

    Flook = (Non Integrated)

    Reason/Analysis: Begins with a Bare Court Created Judicial Exception of math followed by additional steps that apply the the Judicial Exception. Extra solution ( pre or post ) analysis required.

    Diehr = (Integrated)

    Reason/Analysis: Claims as a whole are not a bare Court created judicial exception, nor does the first element of the claims begin with a bare Court created judicial exception followed by additional steps that apply it. The claims maintains their presumption of “Integration” and are therefore integrated and statutory subject matter.

    Bilski = (Non Integrated)

    Reason/Analysis: Claims as a whole are a Bare Court Created Judicial Exception of a math formula. No extra solution (pre or post ) analysis required.

    Prometheus = (Non Integrated)

    Reason/Analysis: Claims begins with a Bare Court Created Judicial Exception of a Law of Nature followed by additional steps that apply the the Judicial Exception. Extra solution ( pre or post ) analysis required.

    Now, applied to the 7963254 patent (?)

    The claims are not a LoN/Physical Phenomenon, Abstract concept ( performed entirely within the mind) .

    Nor does the first element begin with any of these judicial exceptions and add steps for applying it.

    So It appears the claims are integrated and 101 statutory subject matter.

    Of course this is without reading the claims in light of the specification and in view of a person having ordinary skill in the art, which is also required. But barring any problems from the spec, the claims pass 101.

    Let me know if you have any other questions. I am glad to help!

    Authority Relied On:

    Diehr and Flook, the cases most directly on point, both addressed processes using mathematical formulas that, like laws of nature, are not themselves patentable. In Diehr, the overall process was patent eligible because of the way the additional steps of the process integrated the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula. But in Flook, the additional steps of the process did not limit the claim to a particular application..” ) [Cite as: 566 U. S. ____ (2012) 3 Syllabus]

  5. “But clearly, what I had in mind was the concept of Jefferson, not Ron Paul.”

    Umm let’s see. Jefferson owned and raped slaves. Yeah thats some role model. Anyone else you want to apologize for?

  6. Ron Paul opposed civil rights legislation?

    I didn't know that.  

    Did he explain, why?

    But clearly, what I had in mind was the concept of Jefferson, not Ron Paul.  Government does have a role, when necessary.

  7. As part of his Libertarianism. beliefs Ron Paul opposed civil right legislation .

    That means Libertarians would have the freedom to tell “the blacks” as “you people” call them, they can’t eat, sleep, swim, at their businesses, or buy their house, or ride on their buses etc.

    Get the picture?

    Yup from libertarianism to conservatism it’s one big parade. Just some participants have pointy hats made of white sheets and the others made out of shiny tin foil.

  8. IANAE, you seem to agree that conservatism, to the extent it is religious, is not about race.  Homophobia is a different matter, of course.

    I hope you recognize that the original abolitionist movement was heavily based in religion and its tenets that all men are created equal in the eyes of the Lord.  Also, the whole effort in Roman times to bring rights to the slaves was based on this same religious tenet.  

    Racism is endemic in Europe, and in America.  Politically, US long tolerated slavery based in part on racism.  Discrimination, however, was not only against former slaves, but against the Irish, the Italians, Chinese, and, of course, Catholics.  

    What changed?  WWII.  It is clear that Eisenhower had had enough when he found the camps.  He rubbed the collective German nose in what they had done.  He was behind Truman's desegregating the military.  He was the one who began affirmative action in his presidential administration.  It was he who appointed Earl Warren, who gave us Brown v. Board.

    I don't think the Republican Party has ever, in its history, been associated with racism, with slavery, with Jim Crow or the like.  Republicans have always been in favor of equal rights.  It took the Democrat Party a long time to get on board.

    What I see today is, however, a consistent effort of some to rewrite history so that the Democratic Party's long association with institutional racism is denied.

       

  9. Hello Paul:

    Both the algorithm that guides the clamp and biological interpretation that gives the test life and meaning are worthy of patent protection and pass at least 101 if they are “integrated” in the process as a whole.

    An integrated algorithm and/or concept transforms a process into an inventive application of the concept or algorithm. This is what Diehr taught us and what Prometheus upheld.

  10. “There is another form of conservatism that essentially asks for a smaller, less intrusive government across the board: Libertarianism.”

    Libertarianism, yeah, like the freedom to discriminate ( no civil rights act, no voter rights act) and own slaves, ( pro civil war).

    Where as conservatism is racism, libertarianism goes beyond that even. It’s anarchy, it just nuts.

  11. Most conservatives are of the religious type, including Catholics, a lot of whom are not white.

    You don’t have to be white to be racist. Or homophobic. Or against any of the other forms of “personal liberty” that basically involve being or acting differently from religious conservatives. Or, more to the point, differently from how religious conservatives say people should be or act.

    Pretty much the central tenet of any Western religion is conformity. A religious conservative who wants “freedom” really wants the freedom to practice his own religion, and preferably for everybody else to do the same.

  12. IANAE, that might be considered to be a bigoted smear.  Most conservatives are of the religious type, including Catholics, a lot of whom are not white.

    Sent from iPhone

  13. I for one do not understand how a conservative can say with a straight face that he is for freedom but in the next bread be against all forms of personal liberty.

    Being a conservative means that everybody is free to agree with you. Which, actually, is not that different from “any color you want, as long as it’s not black”.

  14. Forward, I think a lot of people conflate racism with religious conservationism.  They are not necessarily the same thing.

    There is another form of conservatism that essentially asks for a smaller, less intrusive government across the board:  Libertarianism.  The religious right shares very little with libertarians.  But the disagreements between the two have nothing to do with race, but more with abortion, drug use,  and other forms of personal liberty.  I for one do not understand how a conservative can say with a straight face that he is for freedom but in the next bread be against all forms of personal liberty.

  15. “Regarding modern “conservatism,” I think it far more associated with religious conservatism that anything else.”

    And this is why the Tea Party wants to see Obama’s papers. Just like a so called freed slave had to carry? Yeah right. Give em that old time religion.

  16. Regardless of whether you are right on liberal v. conservative,  that is not how history is taught.  The Democratic Party's prior association with racism is erased.  The clear implication is that it was the Republican Party, the party of Lincoln for pity's sake, that was responsible for slavery, Jim Crow and all of that.
     
    Regarding modern "conservatism,"  I think it far more associated with religious conservatism that anything else.  This is why I for one have a problem with it.

     

  17. Personal responsiblity, fiscal restraint, and self control are racist? Exactly what inherent defects do you believe non-whites possess?

    Yeah, keep trying there LOL!

  18. Just for the record, the party has nothing to do with racism.

    It’s the ideology. Modern “conservatism” is synonymous with racism.

    Liberals are the true heroes of the civil rights, voting rights, and equality in this country.

    Conservative Democrats left the party under Johnson because liberals pushed through civil rights.

    In fact the Republican party built it’s success and legacy, Nixon. Reagan, Bush on the Southern Strategy, which was to appeal to conservative AKA racist Democrats in the South and convince them to vote Republican. And it has worked clean up until 2008 when Obama and the liberals took back the moral compas of the country.

  19. Przemysła Lib, feel free to support your “theory” with a single solitary advanced modern nation that has adopted your dogma.

    I suspect I will receive your answer when I get the answers from Beaker et al (that is, never).

  20. Przemysła Lib, the Prometheus Court told you 9-0, a concept integrated into a process transforms the process into an inventive application of the concept, why then can’t technology, such as software, integrated into a process transform the process into an inventive application of the software?

    No one on this board has ever answered this question and since you appear to be a newcomer, with a point of view, I thought you might be brave enough to give it a try!

    If not joine the club.

  21. This may be true. But the PTAB and the Examining Corps apply the the MoT like it is the Gospel. I think we may see a case go all the way back to the Supremes one day asking if they really, really, really meant what they said.

  22. Renee, saying something like that is what is the problem. I once worked for a very large company that defined its corporate mission in vague terminology that no one quite knew the meaning of. If one asked anyone in the company what its business was, or what was its mission statement, most could not give a coherent answer.

    The use of language such as that used by Kappos is itself a problem, a big problem.

  23. “American Progressivism: A Reader” is eye opening on Wilson. It’s a collection of his writings. That guy was seriously twisted.

    The Roman empire is exactly what I’m talking about. They did EXACTLY what we’re doing with immigration, debt, entitlement programs, etc. They ate themselves from within with the exact same tools that we’re using.

  24. Glad I could help.

    You didn’t help.

    The “technical problem” was what? And the novel, non-obvious technical solution was …?

  25. Leo, I know from personal experience that the Catholic view of history is distorted. To them, Rome fell due to “corruption.” To others, Gibbon for example, the Catholic Church and its extreme pacifism, itself was the problem.

    I know also that at least some Americans in public schools are being given a version of the truth that covers up the Democratic Party’s role in certain “ugly” events. Skipping Polk, who achieved much for America, is a case in point. Suggesting the South always was Republican, claiming that Lincoln was a Democrat is another. Attributing the civil rights actions of Eisenhower and Nixon to Democrats. (Did you know that Republican Earl Warren, an Eisenhower appointee, is the sole reason for the opinion in Brown v. Board of Education?) There is a pattern of deception and propaganda not only by schools, but by public media.

    That the Democrat Party today stands for civil rights is to be applauded, but it was not always the case. Presidents like Wilson were as racist as President Jefferson Davis, both Democrats.

    In the words of Orwell, “He who controls the present, controls the past. He who controls the past, control the future.”

  26. If you knew any older southerners, especially the good ole boys that may have a racist streak, you wouldn’t be so smug. Racism is still alive and well in the democrat party. I think LBJ put the Democrat Party position on this issue best, “I’ll have these [people] voting Democratic for the next 200 years.” He was right. They even continually reelected Robert Byrd, a card carrying clansman, until he died in office. Now that I’ve wasted my time on someone who doesn’t care what actually happened (see the original point of this discussion), I’m getting back to work.

  27. example, most people don’t know that the KKK is part of the Democratic Party ala Robert Bird

    You do know that Senator Bird (sic) is dead, right? Or do you mean some other Robert Bird?

    But I’m curious, and willing to be educated: how many KKK members do you think are voting Democratic these days?

  28. “storing audio feature relevance data, audio family index data and audio species identification data temporally correlated to said bird song in a memory device;”

    Glad I could help.

  29. While I agree with all of that (for example, most people don’t know that the KKK is part of the Democratic Party ala Robert Bird), the bigger point for me is the what and why or policy and effect instead of the who. For example, in Weimar Germany, they printed money to avoid a depression, ended up in hyper inflation, and collapsed. Yet, people today thinking digitizing money (printing on steroids) is a GREAT idea; it’s free liquidity. No, it’s not free, and if we knew history, we wouldn’t be repeating these mistakes. But whether it’s Germany, Zimbabwe, or Japan, the policy and effect is much more important than the who and when.

  30. the technical problem

    Please identify the “technical” problem and “technical” solution in the claim below:

    7963254

    1. A method for learning to identify birds by their song comprising:

    storing a bird’s song in memory device;

    storing audio feature relevance data, audio family index data and audio species identification data temporally correlated to said bird song in a memory device;

    selecting the stored bird song for replay; and

    replaying the selected bird song on an audio device while displaying the correlated data and the degree of relevance of the data to the identification of the bird family on a display device.

    Is it necessary to possess ordinary skill in the art of either identifying bird calls or computer programming to write or understand this claim? If you believe the answer is yes, please explain what special skill was required to conceive of this invention, which was plainly reduced to practice immediately upon describing it.

    Why does the USPTO require practitioners to have a “technical” background when this type of subject matter is being pursued (and granted) at increasing rates each year?

    Was the Examiner who granted this patent smoking a secret brand of governement crank when he sent the Notice of Allowance?

  31. Really?

    I went to her school and confirmed the truth.  In fact, I saw how they were teaching American history.  For example, they totally skipped Polk, and said Lincoln was a Democrat.

    On a recent election-night analysis (2008), one of the CNN folks commented on the election of a Democrat to the governorship of some Southern state that this was the first time since the Civil War that a Democrat had won election in this deep-South state.  Now this was supposedly an educated man saying this.

  32. the technical problem

    What “technical problem” is solved by describing an idea for monetizing information “X” that recites steps for obtaining information “X”, “determining” something about information “X” and targetting an individual or group of individuals based on the determination?

    This is a rhetorical question.

  33. I still remember the day that my daughter came home school and announced that JFK was the best president ever and Nixon the worst. “After all,” she said, “Nixon got us into the Vietnam war and JFK got us out.”

    To be fair, Ned, there are a couple of possible explanations for this.

  34. bad joke, perhaps it's not so much that they don't teach history anymore, but that they teach propaganda. I say this because I only went to Catholic schools and there received a version of reality that was quite inconsistent with real history. After I got out of college, I had to re-study history in order to learn the truth. I don't think most Americans will do this because I don't believe most of them realize that they been lied to their entire lives.

    One can only imagine what it's like to grow up and be educated in even more totalitarian states like communist Russia, Nazi Germany in any religious theocracy that seem to be so common today. But United States is not immune to the phenomena. We teacher version of history that is flawed.

    I still remember the day that my daughter came home school and announced that JFK was the best president ever and Nixon the worst. "After all," she said, "Nixon got us into the Vietnam war and JFK got us out."

    Further, I don't know how many times I have seen it stated publicly by people who really believe it is true that it was Johnson who sent the troops south to open the schools after Brown v. Board of Education. That was not Johnson, that was Eisenhower.

    Desegregation? It was Eisenhower and Nixon that began affirmative action during their administration. It was Nixon who gave it teeth with timetables and quotas. Read Nixon speech accepting his nomination to the presidency in 1968. A major point in the speech was that the welfare state would lead to more segregation and not less. He reemphasized that it was the Republican platform and his platform to support desegregation, and he did so with a vengeance when he was president.

    Not ofter observed is what has happened with the welfare state. The blacks in the poor stay mainly in the ghetto supported there by the welfare state in a not dissimilar fashion to Indian reservations. One has to ask this question – did in the advocates of the welfare state know that this would happen given the prior examples of Indian reservations? I think it is quite self-evident that they did know, and further that they intended the result. After all, the welfare state was a program advocated by a Southerner.

  35. It’s because we don’t teach history anymore. The under 30 crowd is COMPLETELY ignorant of history. They have no idea that Russia was a collectivist society, or that Nazi Germany was, or that Italy was. They have no idea of the atrocities committed “for the greater good.” And when confronted with reality…. “Well, that could never happen here; we’re the United States.” :homer:

    Most of these same people think that China is today a collectivist society. WRONG! They saw the power capitalism and are trying to harness it under a totalitarian government. Big difference.

  36. It seems rather, to be about your lack of knowledge about law.

    I suggest you seek first to understand IP law (copyrights and what they cover, patents and what they cover) before you embark on your crusade. Otherwise, you will only continue to embarrass yourself with your postings.

  37. Nor expect any respect for such law.

    I expect you to obey the law no matter how your lemming feelings get in the way.

  38. Process is its own distinct patent eligible category. It is not tied to a machine, manufacture or composition.

    See Bilksi that held 9-0 that MOT is not a requirement for a process to be patent eligible (one of the few things in that case that all nine justices agreed to).

  39. It’s far more likely that the intent was to benefit black people and women.

    Yet another inane and vacuous comment.

    Is there a reason you feel compelled to deviate from a discussion on patent law with such nonsense?

  40. I concur – they are blinded by their ideal end-state. That is why I ask for a single solitary example of a modern advanced society that has reached that state – and that is why they have no answer to my question.

    Mind you, the idealism – in and of itself – would be a wonderful state to be in. But such simply is not reality.

    That they continue to post the same “crrp” despite this call to base their position in reality only exposes their being out of touch with reality and harms the cause they seek to advance. Delusional aspirations must be set aside as real work needs to be done.

  41. > They give proof that there is problem.

    It may perhaps be an indication that there might be an issue. That, however, is nowhere close to being a proof.

    > If those who innovate rise voices against Patents. Then proponents of patents have to actually PROVE their usefulness.

    > As this speaker of USPTO fails to do…

    Seriously? Have you considered that others make the law, that some have to follow that law and are commissioned to act on that law and then has absolutely noting to prove?

  42. > I wonder what percent of today’s software/computer-implemented patent application drafters have been “writing software for several decades”.

    At the firm I am working we all have a long experience, academic as well as industrial, in the arts where we work. The clients I have would have seen through us immediately if we were not experienced enough to understand the technical problem as well as the solution they present.

    It used to be that a client selected a patent law firm once and stuck with this firm; these days they look around to see who can serve them best and if I cannot convince them they will leave. Perhaps this is an European phenomenon; after all times are demanding and clients know they can demand service.

  43. > That is correct. Instead of hard math I can use my CREATIVITY.

    If you are truly creative it will, by definition, be novel and thus not patented.
    If on the other hand there is a patent you are, again by definition, not original and you have no claims on being creative either.

  44. Ned,

    It is you that do not get it. The dicta on Benson was RIGHTFULLY ignored and canined in cases after Benson. You rail at this, but that is the law that you continue to close your eyes to – it is a driver for your misinformed animus towards Judge Rich who KNEW that the dicta in Benson was crrp and could be ignored.

    It’s like your you unholy and totally unreasonable (which you finally relinquished) as to what the holding in the Bilski case was. Do you remember when that light bulb went off?

  45. Is “nothing” a machine, process, manufactured or composition?

    Are you saying a process should be patentable independent of a machine, manufactured or composition?

  46. Ned — you refuse to get that Benson is a horrible decision that is effectively dead at the USPTO and the Federal Circuit.

    Its not going to get any play at SCOTUS because Douglas’s analysis was a bunch of hand waving by a guy that didn’t like patents to begin with. Basing any analysis on Benson isn’t going to get you anywhere.

  47. Don’t confuse logic with math. They are not one and the same.

    Software is computer logic — not computer math.

  48. anon, the do-gooders never seem to get it. They imagine a utopia where all share, and goods and services, like money, seems to grow on trees. Society in such a world is one big welfare state. Who actually works and produces is unstated. Helots?

    In such a world, inventions magically appear and are shared with all. How this happens is not really explained.

    Anon, if we stop arguing about utopias, we note that in real societies without patent law, even with the rule of law, inventions are slow in coming. They occur, but not all that often. And if they do occur, they spread slowly because the first instinct of the possessor of new technology is to keep it secret.

    Patents were created in Venice to overcome this tendency to keep new technology secret. Once patents spread to Germany and England, technological progress took off.

    The do-gooders never seem to get this.

  49. Are you intentionally trying to talk like a cold war soviet, or is it just a happy byproduct of communism? Because if you’re willing to promise me a cool Russian accent, I might be willing to agree with you.

  50. Define “software.”

    Define “abstract.”

    Define “a particular machine.”

    Define “quality.”

    Define “patent ecoshpere.”

    Define “fashionable nincompoop.”

  51. NOT applaied.

    Its MATH.

    As in school math. As in univ math. As in (pick any mathematical periodic name) math.

    As in PURE math.

    As in math publicized.

  52. The ONLY people out there drafting software patents are EE’s and CS guys, at least at the big guys and boutiques.

    Unless you are using the term “software patent” in a very narrow fashion, you are certainly wrong and I know many people who are not “EEs or CS guys” that will attest to the fact that you are wrong (including myself) based on their own experience. Now that I’ve beaten your own strawman into mulch, let’s return to my original proposition:

    I’ll wager that at any of the larger firms out there doing patent prosecution that every prosecutor employed more than two years has drafted an application that includes a “computer-implemented” invention.

    Nothing controversial about this.

  53. anon, you steadfastly refuse to “get it.” Benson declared that using a GP digital computer is not enough. Alappat (in its hypothetical regarding a software equivalent) declared that the use of software in a particular machine or system was, however, patent eligible. This was, after all, the holding in Diehr as well.

    All one has to do is compare Benson with Diehr and Alappat.

  54. Patents =/= IP.

    Just such misconception invalidate your whole replay.

    And if we stick to the TOPIC, then yes there are examples.

    Like EU which do not have Software Patents.

    Like US. YES MODERN US did not had Software Patents until 90′. And YES US LEAD innovation without them.

  55. Why shouldn’t it?

    Is not law made to HELP?

    As in HELP foster innovation in useful arts.

    If you define programming as useful art, then you can only conclude that patent MUST help. If they harm, they are AGAINST US constitution.

    What I’m saying is that ITS common “feeling” in programming community that Patents DO NOT help. That they are HARMFUL.

    So you can FORCE upon industry this law, but do not expect warm fillings from “lemmings”. Nor expect any respect for such law.

  56. SOFTWARE CAN NOT GET “PROTECTION” FROM PATENT.

    Software can only infringe patent.

    That is all about your knowledge about law.

  57. Yes. As a guy who works with startups, I ROUTINELY see my clients acheive funding and build out a company. Sorry you’ve never even tried, but it doesn’t change reality for those that have tried.

  58. I’ve been at some the biggest, and for the record, you are CATEGORICALLY wrong. The ONLY people out there drafting software patents are EE’s and CS guys, at least at the big guys and boutiques.

    What kind of third rate practice do you do anyway Mooney?

  59. You have issues that you should see someone about.

    It’s amazing what a few years in private practice does to a person. How many of us could pass a psych screening today? HA!

    (Yes, I realize that we’re all smart enough to just give the answer that the questioner wants to hear.)

  60. One has to wonder why the heck was IP considered so important as to merit mention in the Constitution?

    Maybe it was an attempt to “reward the cronies” of the drafters.

    Nah. Impossible to imagine that. It’s far more likely that the intent was to benefit black people and women.

  61. Alun:

    You are exception, but you are also a chemist, which theoretically places you even further away from having a clue about software.

    There’s really no reason in 2012 that an electric engineer would “theoretically” know more than a chemist about programming. I apologize for breaking that shocking news to you.

    Chemists have been programming computers for their own purposes for a long time and many continue to do so. I took an organic chemistry lab where we were required to write our own program for analyzing nuclear magnetic resonance spectra.

    Remember: programming is so easy that there is essentially no enablement requirement. All you need to do is describe what the software does and voila! the artisan of ordinary skill will take care of the rest. That much I learned from the esteemed commenters here who are “experts” in the field.

    I’ll wager that at any of the larger firms out there doing patent prosecution that every prosecutor employed more than two years has drafted an application that includes a “computer-implemented” invention. And why not? That’s where the “action” is, isn’t it?

  62. Renee,

    You too are invited to submit a shining example of a modern advanced society that has thrown off the ‘oppressive’ shackles of IP law, abolishing same and now live in Nirvana for all the rest of the world to follow.

    WAKE UP.

  63. Just like when the government created a patent office.

    More anti-patent self-defeat from MM.

    One has to wonder why the heck was IP considered so important as to merit mention in the Constitution?

  64. I freely admit that I write software apps and I am not a programmer. I am an electrical engineer, with my engineering experience being in RF. I failed to learn the Fortran I was taught (showing my age) and taught myself Basic. No doubt that will provoke chuckles from actual programmers, but it shows I have some concept of programming, which ironically was not learnt in a class, if for all the wrong reasons. I do know patent law, though, which is more than most of the naysayers do. You are exception, but you are also a chemist, which theoretically places you even further away from having a clue about software.

  65. “They are also ecosystem enablers, and job creators.”

    Saying something does not make it true. Patent maximalists love to say thinge like that. Does anyone actually have any EVIDENCE?

    I could step up and say “I am a job creator, give me power and money.” Come on now, guys, send those checks! I am a job creator, right? I just said so!

  66. All that ever happens when the govn’t “steps in” is that the cronies get rewarded.

    Just like when the government created a patent office.

  67. And in case you were unaware of it, software can earn both copyright and patent protection.

    You do know that the protections are different, right? (If you don’t, don’t feel too bad, as you can learn the differences and even the Greatest Patent Attorney Ever (self-professed, that is) has flubbed the differences between what copyright covers (expression) and what patents cover (functionality).

  68. C’mon guys, all I am asking for is one advanced modern society that has seen the light of your Dogma and can shine like a real world example.

    In deference to this clearly valid argument, no patent should ever be granted unless the claimed invention is such a good idea that one advanced modern company (other than the applicant, that would be cheating) has seen the light and implemented it.

  69. I am very well aware of your lemming-style programming ‘culture.’
    As posted previously, I happen to know the tech as well as the law. On the other hand, you for some reason think that your ‘Culture-über-allies’ mindset and total ignorance of law is going to win the day.

    How very sad. For you.

  70. NOPE.

    I say that some SPECIFIC solutions which I may pick in my code, will choose based on their esthetics’s.

    That some SPECIFIC solutions which I may pick in my code, will choose based on my creativity.

    This mean that I may come up with independent innovation SOLELY as expression of my FREE SPEECH expressing my creative and esthetic abilities.

    That is correct. Instead of hard math I can use my CREATIVITY.

    Now if someone already hold patent (or will hold patent), he can BAN me from exercising my free speech.

    PS I’m software developer. I think that COPYRIGHT is the way go go. Both as protecting my right, and as incentive for development, innovation, jobs, etc.
    Oh and its free to get, so LONE POOR INVENTOR is really able to afford it :P

  71. Join the crowd of those who do not (because they cannot) provide a single solitary modern advanced country that does not have patent law or IP protection.

    C’mon guys, all I am asking for is one advanced modern society that has seen the light of your Dogma and can shine like a real world example.

    Just one.

    Please.

    Be useful and provide an actual example so that the rest of the world can so ‘eagerly‘ follow.

  72. They also intervened when the financial companies were defrauding people and when GM was in bankruptcy. All that ever happens when the govn’t “steps in” is that the cronies get rewarded. That is NOT a good system. We have a system that works; let it.

  73. Your use of Benson is known dicta Ned.

    Further, this does not support your well- worn attempts at introducing extraneous factors into the law (such as “automatic”).

    Sorry Ned, this is a complete miss for you. Your commercial sponsors expect better.

  74. Opposition to Software Patents is OLD.

    As old as 1960′.

    At one point there was even voice from President office against those patents.

    What totally-ati-patent crowd claim IS SIMPLE.

    Since ALL software patents should not be granted. 101, 103 is not applicable.

    As if applying law about Cows to Cars would mean anything…..

  75. ALL algorithms are MATH.

    As in ARE MATH.

    As in USING MATHEMATICAL METHODS ONE CAN PROVE THAT ALL AND ANY SOFTWARE ALGORITHM IS EQUAL TO SOME MATHEMATICAL ALGORITHM.

    Math is not patentable. Nobody think that unpatentable math is against constitution or against such obligations as TRIPS.

  76. They give proof that there is problem.

    If those who innovate rise voices against Patents. Then proponents of patents have to actually PROVE their usefulness.

    As this speaker of USPTO fails to do…

  77. NEGATIVE

    Congress on several occasions INTERVENED when so called “normal” patent wars reached point of absurd.

  78. You’re confusing copyright with patent now. Just go back to programming and let others handle the business and legal aspects.

  79. Its COMMON KNOWLEDGE among programmers that they express their activity as CREATIVE writing as well as MATHEMATICAL engineering.

    If patent is MONOPOLY as it is. It grant its owner ability (backed by Government) to block/censor other from exorcising patented activity(whatever).

    So if some one is granted patent(monopoly) on my pice of WRITING that is DIRECT EXPRESSION of my thought, AND CREATIVE* (and ESTHETICAL*) abilities (and NEEDS), and then block my doing.

    I can call it CENSORSHIP.

    * Yes some methods of solving problems are picked BECAUSE OF their esthetical appeal to the programmer.

    So you show your IGNORANCE at programmer culture and selfconsciousness.

  80. For my part I have written software for several decades and I believe this is the norm for people who draft patent applications relating to software, or computer implemented inventions (CII) as these are also called

    I wonder what percent of today’s software/computer-implemented patent application drafters have been “writing software for several decades”.

    I’m guessing it’s around 5% but it’s quite possibly very close zero %. I’m guessing the percentage of such drafters who have never written a line of code outside of highschool or undergrad computer classes is at least twice as high, maybe ten times higher.

  81. It’s also comforting to hear of all the complaints about how broken the patent system is, yet those that complain do nothing to help solve the system.

  82. anon, legal cite: Benson.  There the software used the machine.  The machine was a tool, a means for performing the algorithm.  A new machine was not defined by the claims.
     

     

  83. Ha ha, for once, you make a relevant comment.

    With accelerated exam though, I think that they are keeping up where they really need to.

  84. Here’s a nove idea: through the courts, as in the same way “the patent wars” have been solved for 200 years.

  85. Herr Kappos:

    A system like ours, in which innovation is happening faster than consumers can keep up, cannot fairly be characterized as “broken”.

    What about a system where innovation is happening faster than the patent office can keep up? Is that system fairly characterized as broken?

  86. For my part I have written software for several decades and I believe this is the norm for people who draft patent applications relating to software, or computer implemented inventions (CII) as these are also called.

    ROTFLMAO

  87. Ned,

    We have covered this many many many times. To those in the art, software is equivalent to firmware is equivalent to hardware. You attempt to make a difference that has no distinction.

    I will preempt your usual gambit by asking you to provide a legal citation for your “automatic” and whatever “policy-as-law” statement you usually use when trying to force your commercial agenda on the blog. Since you have never complied with a proper establishing of additional factors that you read into the current law, let’s hope this nips your commercial in the bud (or perhaps you will surprise me by attempting an answer that I have long sought from you).

  88. Kappos seems to define “software” patents in terms of firmware: software that improves machines. To that extent, software indeed is worthy of protection.

    But most of us do not think of software patents in those terms. Those patents are not the software patents that are causing concern. Those patents are really hardware patents.

    The software patents that concern everyone are patent unrelated to improving machines. Kappos does not speak to these, or does he by bait and switch tatics? — fooling us by the sly use of the word “software.”

    Then he speaks of quality, not telling us what that means. Most of us who have see the grossly ambiguous claims that issue on “software” patents quickly identify at least one quality problem that has not been addressed and that have been so often spoken about in describing the problem of the patent “thicket.”

    If anyone knows what Kappos means by “quality,” let him speak.

  89. > Certainly, most people involved in developing software (which includes everyone writing a macro for a spreadsheet, not just commercial developers) don’t understand how patents work, but the incomprehension is mutual.

    A patent attorney/agent has to have a technical degree in most countries I am aware of. Moreover a person drafting an application normally has experience in the field of the application. For my part I have written software for several decades and I believe this is the norm for people who draft patent applications relating to software, or computer implemented inventions (CII) as these are also called.

    > Arguments in favour of software patents would be more convincing, if the proponents could demonstrate they actually understood how developing software works.

    Been there, done that: it didn’t work. And I have done the entire chain from writing software, testing, commissioning and operations. As have many of my collegues.

    The software community is rather pricly for certain forms of terminology, such as hacker vs. cracker, but when it comes to novelty and obviousness/ inventive step I see essential details are gloosed over as not worth discussing. And this selective carelessness is what is the root cause of miscommunications.

    Add to this some own goals such as sprinkling documentations with comments like “You are not expected to understand this” the entire discussion about sufficiency and obviousness implodes messily under its own weight.

  90. Certainly, most people involved in developing software (which includes everyone writing a macro for a spreadsheet, not just commercial developers) don’t understand how patents work, but the incomprehension is mutual

    I completely disagree – at least for myself whom I can speak.

    You have to remember that most patent attorneys DO have feet in both the technical world and the legal world. Sure, there are those that write patents without an understanding of the technical world, and sure, there are “bad patents” out there. But your blanket statement is refuted precisely because it is you that do not understand the arena you are in.

    You are in the legal arena when you argue concerning patents.

    You may understand how developing software works, but that understanding becomes a blindspot when you attempt to understand the law. Being “smarter” on the tech side does not compensate for lack of understanding of patent law. Too often, in fact, being “smarter” on the tech side is thought to compensate for the lack of knowledge on the legal side and the positions our forth are such crrp as to eliminate themselves from any serious legal discussion. Yes, technology is involved, but that is not the drive in the legal discussion. Patent law is written broadly (and done so for an express purpose). Patent law – not the software development tech side – is where the argument will be won – must be won. For no other reason than that is the arena where the contest is being held. Do not make the mistake that because the patent law discussion is not completely satisfying to those of the tech crowd (who often are not willing to listen anyway), that patent law must be wrong. To do so is to allow yourself to fight a legal fight with blinders on.

  91. Algorithms can be patent-eligible, and still not patent-worthy

    I concur. However, if you listen carefully, that is not what is being said by the anti-software patent crowd.

    Further, that is precisely what is being said by David Kappos.

    The point in fact is that using 101 as an atomic bomb is not appropriate. If you are discussing a category (as opposed to an individual claim), software (as a category) easily passes the 101 hurdle.

    I have explained this many many many times.

    Individual claims – exactly like individual claims in ANY technology or useful art – must STILL pass all elements of patent law to earn a patent.

    I have explained this too many many many times.

    The problem we have (and visit Prof. Crouch’s 50-year old letter thread for more explanation), is that there are those with an agenda to remove this type of thing from the patent world on a category or per se basis. Such agenda is not found in law, nor found in facts, but only in pure “policy” and only when that “policy” actively obfuscates law and facts.

  92. > While each feature in themselves might not be new it is the combination that counts.

    As long as it’s not obvious, certainly., but that;s not quite the objection I meant to raise. Rather, the perceived problem is that the patent may not disclose enough information to allow it to be implemented, using no other information that is in the public domain. This was the issue in the recent Canadian case Pfizer lost.

    >Most complaints I see state the claims are obvious but never go to show that they were obvious at the time the patent was filed.

    Strange. The complaints I see normally have long comment threads with people raising earlier examples, either in commercial practice or from the academic literature.

    While the examples given generally don’t match the patents discussed exactly, software engineers seem to feel they should receive more credit for being to reason by analogy than the patent system apparently gives them.

    Take the scalpel example. it falls into a generic class of problem – steering a precise course through some space – which need not invovle a physical object, or 3-d space. An algorithm that works for any problem in this generic class can be translated into one that controls the scalpel, just by drawing the obvious analogies. Translating software that controls a robotic arm in a car assembly plant to control would be trivial. Translating software that turns heating on and off to create a desired temperature curve would only be marginally harder – but the patent system apparently disagrees.

    Certainly, most people involved in developing software (which includes everyone writing a macro for a spreadsheet, not just commercial developers) don’t understand how patents work, but the incomprehension is mutual. Arguments in favour of software patents would be more convincing, if the proponents could demonstrate they actually understood how developing software works.

  93. The question raised was why should a particular algorithm be worthy of protection, not why it should be patentable.

    To be worthy, it needs to satisfy all the relevant clauses, not just 101. Algorithms can be patent-eligible, and still not patent-worthy, by failing to satisfy any of the other clauses.

  94. > The other common objection is that software patents seldom actually disclose anything not in the public domain.

    Well then, how often have you submitted third party observations or the like? While each feature in themselves might not be new it is the combination that counts.

    > They may describe the problem they solve in exhaustive detail, but they nothing about how to solve it that wouldn’t be obvious to someone working in the field.

    Most complaints I see state the claims are obvious but never go to show that they were obvious at the time the patent was filed.

    > Before defending software patents, it might be useful to think about why so many people working un the field oppose them. Are they all deluded, or eager to steal other peoples innovations, or might they have a genuine point?

    I have actually discussed this a few times in depth (LWN for instance) and most commenst are rather superficial (looking at the abstract thinking that is the claim) or fail to understand that novelty and obviousness should be determined with respect to state of the art at he time of filing. It is surprising how quick many are to apply hindsight and dismiss inventors as producers of mere obviousness.

  95. I think they know as little about the difference between 101 and 103 as you do. So the problem seems to be user error, not a system bug.

  96. algorithm, and the interpretation, are widely felt to be obvious to anyone ordinarily skilled in the relevant art, by those people

    That’s a 103 issue – not a 101 issue.

    Let’s keep the law straight people.

    Please.

  97. What Kappos overlooks is that the algorithm, and the interpretation, are widely felt to be obvious to anyone ordinarily skilled in the relevant art, by those people.

    The other common objection is that software patents seldom actually disclose anything not in the public domain. They may describe the problem they solve in exhaustive detail, but they nothing about how to solve it that wouldn’t be obvious to someone working in the field.

    Before defending software patents, it might be useful to think about why so many people working un the field oppose them. Are they all deluded, or eager to steal other peoples innovations, or might they have a genuine point?

  98. An absolutely classic passage is to be found in Dave Kappos’ speech:

    “Why would we tell the team working on a clamp that holds a scalpel their innovation is worthy of protection, but tell the programmers whose algorithm guides that clamp with unerring precision their innovation is not? And what amount of venture capital would that team of innovators raise if half of their innovation was free to be lifted by their competitors the moment they put it in the marketplace? Discrimination against a form of innovation that is increasingly critical to technological advancement, indeed that in many areas dominates technological advancement, makes no sense.”

    It only remains to say amen to that. It is hoped that this sectio of the speech, together with its context as explained by Dave Kappos, will in future be rotinely cited in patent-eligibility cases. Ond on the facts in Prometheus, why would we tell a team of medical scientists working on a blood test that the chemical part of the test is worthy of protection, but the biological interpretation that gives the test life and meaning is not?

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  100. “In fact, our decisions on both allowances and rejections correctly comply with all laws and regulations over 96 percent of the time.”

    So only 4% of patents are junk? How comforting…

  101. The problem is that the PTO data bases and the classification system for software and business method inventions are grossly out-of-date resulting in bad patents being issued and the respect for the patent system being degraded. This “infrastructure” has been neglected for decades. It is time for the sake of economic development that it be upgraded.

  102. Solutions to problems can be hardware solutions or software solutions. Why should only the former be patentable?

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