Recent Scholarship: Investing in America’s Future by David Kappos

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/

236 thoughts on “Recent Scholarship: Investing in America’s Future by David Kappos

  1. 236

    A sword to pierce the SHIELD: those commercializing are the ones who are victimizing the industrious inventors.

    Worth repeating.

  2. 235

    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.”
  3. 234

    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.

  4. 233

    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.

  5. 232

    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.

  6. 231

    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.

  7. 229

    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.

  8. 228

    Questions and directions from Ned, but the points raised remain unanswered.

    Ned, the silence from you is deafening.

  9. 227

    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?

  10. 223

    “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.

  11. 222

    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.

  12. 221

    “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.

  13. 220

    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.

  14. 218

    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…?

  15. 217

    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.

  16. 214

    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.’

  17. 213

    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.

  18. 212

    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.

  19. 211

    You still need to recite the distinguishing structural features.

    LOL – you mean like reciting ‘isolated’ or ‘purified?’

  20. 210

    You failed the Grand Hall experiment and as to being ‘quite vocal,’ meh, you have been quite inconsequential.

  21. 209

    “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.

  22. 208

    …and by machine, I mean the classification which includes the machine components…

    (so don’t be pedantic)

  23. 207

    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.

  24. 206

    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.

  25. 205

    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.

  26. 203

    Do you know what 102 and 103 say?

    If you did, you wouldn’t be saying these things.

  27. 202

    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)

  28. 201

    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.

  29. 200

    LOL – calling someone a re re and QUITE missing the point.

    Its humorous how clueless you are 6.

    No really.

  30. 199

    I know the cases – obviously much better than the errant misrepresentations going on here, 6.

  31. 198

    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.

  32. 197

    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

  33. 196

    “You have been caught in the web of deceit spun by INANE ”

    Um, I came to the conclusion myself brosef. 5 years ago, remember?

  34. 193

    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

  35. 192

    “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.

  36. 191

    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.

  37. 190

    “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!

  38. 189

    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.

  39. 188

    “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 :(

  40. 187

    “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.

  41. 186

    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.

  42. 185

    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

  43. 184

    Read Alappat and come back Malcolm – your example here is nothing but smoke and mirrors, mere blatherings unconnected to reality.

  44. 183

    “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.

  45. 182

    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.

  46. 177

    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).

  47. 175

    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.

  48. 174

    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.

  49. 173

    Jane Fonda

    Maybe later Grandpa will share his views about “longhairs” and their “loud jungle music.”

  50. 171

    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.

  51. 170

    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.

  52. 168

    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.

  53. 167

    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.

  54. 166

    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.

  55. 163

    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.

  56. 162

    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.

  57. 161

    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.

  58. 158

    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.

  59. 157

    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.

  60. 156

    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.

  61. 154

    To be fair, all those slaves that had zero income that don’t exist any more probably put a damper on those numbers.

    To be fair, at least they got room and board, which some wage earners today can’t pay for. And the rich are way richer now than they ever were.

  62. 153

    Some big companies have ceded innovation to small companies. They don’t even try to be the leader; they just wait for a small company to innovate and then purchase it.

    That’s the plan. The innovation centers at big corp failed in some cases.

  63. 152

    more income disparity than every before in the United States

    To be fair, all those slaves that had zero income that don’t exist any more probably put a damper on those numbers.

  64. 151

    But you know, so many of those little companies get purchased by the big companies, and their patents go to them. I have no point, I just think it’s kind of a sad state of affairs when the optimal trajectory of so many start-ups is to be swallowed, rather than crushed.

  65. 150

    But so what?

    (Sigh)

    You are purposefully trying so very hard to stay ignorant.

    Useful arts.

    Stop right there – do not attempt any other application of patent doctrine.

    You are trying to miss the forest for the trees while standing in the middle of the Gobi desert.

  66. 149

    And yet, it’s an indisputably clear case of the printed matter doctrine.

    Except that you are ignoring (still) anthropomorphication and the exception to the printed matter doctrine.

    You are simply not (intellectually honest) allowed to do so.

  67. 148

    Anthropomorphication FAIL

    INANE, a machine is not a person. You cannot conflate the two as the difference is critical.

    Even further than that – and much bigger dagger to your position is that it does not matter in regards to the exception to the printed matter doctrine.

    Go review the magic hatband case.

    Come back when you understand controlling law.

  68. 147

    How can two machines with the same structure work differently?

    Two CDs with different songs on them work differently. They make a computer work differently.

    Two books with different writing in them make your brain work differently.

    Printed matter always affects the person/device reading it, but the doctrine still applies. Otherwise, the doctrine wouldn’t exist. It’s not an “anything-but-computers” doctrine.

    Besides which, you’re not actually claiming the structural difference. Nobody ever does, in software. It’s always “a medium containing instructions for”, which you know as well as I do can correspond to any arbitrary sequence of binary bits.

    There are no end of problems with a claim to “a prior art storage device, wherein a computer does XYZ with it”. 101, 102, 103, 112, you name it. You only refuse to acknowledge the problems because you fancy yourself intellectually superior to some strawman “iron-age thinkers”.

  69. 146

    They must be. Otherwise they would not reprogram the computer, they would not FUNCTION as the carrier.

    You could say the same thing about a book that carries information. Once you read it, you have new information in your brain. You’re a whole new, reprogrammed person. You know new stories, or new recipes, or new phone numbers. The book functions very well as the carrier. The paper and ink are optically readable structure. Heck, even a computer can read it. And yet, it’s an indisputably clear case of the printed matter doctrine.

    no one ever said that the function had to be anything more than a “passive” carrier.

    Would it surprise you to learn that the printed matter doctrine says exactly that?

    The functionally-related exception applies only when the medium is something more than a passive carrier. That’s the entire reason the doctrine and its exception exist.

    Incidentally, “auto-executing” doesn’t change whether the software is functionally related to the medium, unless you’ve found some way to make a storage device execute stored commands. The medium itself is still passive.

  70. 145

    Can you try just a little to understand that the useful arts still applies, INANE?

    A computer-readable medium is an article of manufacture, well within the useful arts. It has novel structure on it. The structure happens to be a song, but so what? It’s statutory because it’s a structurally defined component of a computer, isn’t it? It doesn’t matter what’s on the medium, as long as it has bits and a computer can read it. At least, that’s what you and NWPA have been trying to tell me.

  71. 144

    Another case of a top university putting their name on the wrong horse. Not sure if Brian is as corrupt as Lemley, or as much as a commie as Posner, or as much as a black heart as Stern, but Brian certainly is ignorant of patent law.

    I’ll bet our little Brian boy couldn’t interpret a board decision if his titles depended on it.

  72. 143

    They can try, but I will stick by my statement. This lot doesn’t worry me too much. They are mainly just a bunch of dust kicking scoundrels.

  73. 142

    Very much like (and very pertinent regardless – or more likely, especially, since Malcolm would say “pay no attention to the man behind the curtain) just who coined the term ‘Troll,” Brian gets lost in the push (by Cisco) of the AIA and “troll” litigation changes – ignoring the change in joinder rules and blindly drinks the kool-aid with his pronouncement of “and trolls have accelerated their attacks

    Gee, who could have predicted this spin?

    Who DID predict this very spin?

    Brian plays with numbers, but does so blindly.

      The decreasing allowance rate preceding 2009 suggests that the USPTO was working to raise the bar before quality was redefined in terms of internal processes (“quality does not equal rejection”) rather than issued patents.

    Brian – you need to understand the historical norm BEFORE the Reject-reject-reject era. You show no understanding of exactly why Kappos needed to make his “quality does not equal reject” stance. Clearly, you but into the claptrap of ‘quality equals reject,’ which is a baseless position and one that identifies your anti-patent tendencies more than you might realize.

    Sorry Brian, but your ‘progressive’ end-result driven agenda eviscerates any credibility that you might have had.

    You do have a pretty soapbox, though.

  74. 141

    Missing from this calculus is rewarding the inventor. This is rather Posnerian, as the inventor is subsumed into the ‘greater good’ of the commune.

    It is little wonder that the Borg made a great enemy in the Star Trek TNG series. It is only the collective that matters…

    (well, at least to some)

  75. 140

    Sorry NWPA – you need to be more careful with the use of the ‘hot word’ of “general purpose computer.”

    There simply are too many here that will use that ‘hot word’ to kick up a dust cloud, and deliberately obfuscate.

  76. 139

    The lure of “let’s innovate the innovation process” loses focus on the realities of the human condition. This is very much a misguided view that fuels the Attack from the Left – and one that the Right is only too ready, willing, and able to exploit.

  77. 138

    I do not get the impression that Brian has a bad heart or is m@licious in his views. It appears that he just suffers from the Jane Fonda syndrome.

  78. 137

    From the link:

      Science Progress is the premier online journal of progressive science and technology policy from the Center for American Progress. We research, write, and publish articles, opinion editorials, reports, and podcasts that examine current issues in science and technology through a progressive policy lens.

    And importantly:

      At Science Progress we believe that scientific inquiry is among the finest expressions of human excellence, a crucial source of human flourishing, a critical engine of economic growth, and that it must be dedicated to the common good.

    Yes – another it MUST be dedicated to the COMMON good type of philosophy.

    Me, I think Adam Smith had the better idea.

    Another article from the author, from a few years back, presages the invention/innovation distinction, and again also alludes to a COMMUNAL view:

      We have a patent system that dates back over 200 years but has grown complicated, costly, unpredictable, and controversial

      Innovation is less directly controlled, less internal to individual companies, and more the combining of research, design, technology, and components from multiple sources.

    Missing from this calculus is rewarding the inventor. This is rather Posnerian, as the inventor is subsumed into the ‘greater good’ of the commune.

    It is no small surprise to read: “Some U.S. companies, such as Cisco Systems and Dell, excel at pulling the pieces together.

    Cisco: one of the larger pushers of the abysmal America Invents Act.

    Attacks from the Right.

    And buried in the paper comes the anti-patent view:
    Judicial and administrative decisions making patents easy to get has led to massive portfolios-and to opportunities for arbitrage and extortion.

    Sorry Brian – not buying it.

    And finally,

      Brian Kahin is a senior fellow at the Computer & Communications Industry Association in Washington, DC. He is also a research investigator and adjunct professor at the University of Michigan School of Information.

    A professor… LOL – attacks from the Left.

  79. 136

    I guess what amazes me about people like you Brian is that you are willing to write such wild articles shooting from the hip with your facts and implied causation.

    Don’t you care about the truth? What is the point of your article? Do you need to publish to keep your job or get the next promotion? Do you really care about our system or feathering your own bed?

    If you are a moral human, you would take the time to learn and understand our patent system before writing wild articles.

  80. 135

    Except 6, that the claims would be interpreted by one of ordinary skill in the art. And, one of ordinary skill in the art will interpret the claim to read on a general purpose computer.

  81. 134

    Hi Brian,

    I have a question for you: Can you read a patent? How many patents have you read?

  82. 133

    The original speech was delivered at the Center for American Progress and explicitly invited thoughtful discussion on the subject of software patents. Science Progress recently published my critique of the asserted facts and the cited study by the Office of the Chief Economist. See
    link to scienceprogress.org

  83. 132

    This nonsense that if I can’t see it it doesn’t exist

    This too – as a question of law has been fully answered. Those who understand law know this and understand that they are under a moral, ethical and legal obligation to recognize the controlling law of Alappat.

  84. 131

    NWPA,

    You are running into the pedantic semantic of people responding to your post by parsing your words and picking out what is functionally related to what.

    In this sense, you have a misstatement that others are trying to kick into a dust storm.

    When you state that the structure of the medium is functionally related to the computer – while correct, it is not the explicit what to what that should be noted. Much like the hatband case (mere writing on paper, by the way), the functionally related item of the ‘what’ of the software to the ‘what’ of the computer readable media should be the focus of the statement.

    Yes, we both know that the software is a computer component (‘like’ being another pedantic semantic snafu being kicked into a dust storm).

  85. 130

    IANAE: answer the question. How can two machines with the same structure work differently?

    And, I am not interested in how a machine relates to our philosophical relationship to music or anything else. The question is about a machine and a component of the machine.

    I don’t believe that you don’t understand this. I attribute your arguments to intellectual dishonesty and a complete lack of integrity.

  86. 129

    6, this response is beneath you 6. “Like, but not really.” Is that a response? Let’s try to remember that this is innovation. New things. They by definition are not the same as old things or they not be innovation.

    Please 6 try to have integrity. If I could point to the teeth of a gear, then iron age thinkers must accept the structure. But, with this new technology the structure cannot be seen by our naked eyes. And, the no integrity crowd want to convince the mob there is no structure because the mob cannot see it. Shameful. Just no integrity.

    So, 6, answer the question: how can two machines work differently if they have the same structure?
    You see I win. You lose. But, you want to appeal to the ignorant mob to try and win. Consider what a low life that makes you and Richard Stern, Lemley, and the commie Posner.

  87. 128

    And, 6, the computer readable medium must have structure that is the instructions, or the computer would behavior the same manner no matter which computer readable medium was put in the computer.

    How can two machine behavior differently if they have the same structure? (deterministically.)

    This nonsense that if I can’t see it it doesn’t exist. Shameful to try and convince the “mob” which now includes the science and patent law illiterate Fed. Cir. judges.

  88. 127

    6, the medium has structure that is the instructions. Just like the teeth on a gear the instructions define the structure of the medium. The structure of the medium is functionally related to the computer. It is analogous to putting a gear into a machine.

    We appear to be running into the “I can’t see the structure so it doesn’t exist,” medieval thinking again.

    It is exactly like putting an iron age component into a machine. It is really just beyond my ability to comprehend the complete lack of integrity that must lie inside of Richard Stern, MM, and the rest to knowingly put forth lies. But, maybe they think just can’t they can’t see integrity that there own quality doesn’t matter.

  89. 125

    The medium doesn’t make the information content statutory.

    Actually, in a way, that is exactly what it does.

    How does a computer ‘read?’

    Come INANE, you too need to embrace anthropomorphication.

    Recognizing that a machine cannot have mental steps will set you free.

  90. 124

    We’re talking about whether the writing changes the function of the thing it’s written on.

    No. We are not. You are misstating the exception to the written matter doctrine.

    A functional relationship – even a “passive” carrying one is enough. Leopold errs, as do you on this.There is no requirement that the functional relationship itself be different or make the medium itself have a different function. All that is required is that a functional relationship exist.

    It does.

    Period.

    It’s that simple.

    Music? LOL – that canard is retired under a different rule. But you already knew that (I know you know that, as I have told you that before).

  91. 123

    the instructions still aren’t functionally related to the medium.

    They must be. Otherwise they would not reprogram the computer, they would not FUNCTION as the carrier. (no one ever said that the function had to be anything more than a “passive” carrier. This is a fundamental error of INANE and before him, of Ned Heller. Long have I asked Ned to cite where he made up, er um, found this requirement in law (the requirement of auto-executing or of being more than merely ‘passive’) and long has he remained silent, as there is no such cite to be had. It exists only in the minds of those who would deceive.

    Didn’t you learn that lesson long ago in the Great Hall?

  92. 122

    What if the computer was performing this “different” behavior before the medium was introduced?

    A decent question – one that betrays you.

    Think about it.

  93. 121

    How does a laser beam ‘read’ 6?

    Anthropomorphication

    Come and appreciate the key to your understanding and acceptance. Embrace what silences the little circle and turns them into pedantic f001s.

  94. 120

    That would be the wrong conclusion – it was wrong five years ago. It is still wrong. It will always be wrong.

    passively carrying” is a trap for the unthinking. functionally related is not the same as functionable. The relation is enough. You have been caught in the web of deceit spun by INANE – he forgets that 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. The thing interacts and thus proves the functional relationship. If there was no functional relationship, the computer could not be changed. And just as in Alappat, a new machine is born, so too, the disk with the program is also born anew with its very real structural change. Remember the wisdom from Alappat – 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.

  95. 119

    6 think rivets, bullets and tires.

    To claim such, one does not need to claim the vessels united by the rivets, nor the gun that is necessary to fire the bullet, nor the vehicle that without the tire merely sits on a shelf.

    Remove the fog from your brain.

  96. 118

    Only the medium does

    LOL – now we welcome you to our side, 6. For you recognize a change and pray tell what is that change?

    (and please, constrain yourself to the useful arts, lest you lose yourself in the tomfoolery shenanigans of those who would purposefully lead you astray)

  97. 117

    “You want to add something to the old computer that is not prior art. ”

    So? The claim doesn’t recite the computer, the computer is thus free to change at will, it need not be prior art. Only the medium does. Britany’s old albums will do just fine for a 102.

  98. 116

    “A computer readable medium does (or at least may) have structure and that structure is functionally related to the computer. ”

    Well, we’re glad to have you on our side of the discussion now NWPA!

    Slight problem though brosephus, the instructions still aren’t functionally related to the medium. Thus, no printed matter exception, thus 103.

  99. 115

    “The computer readable functions differently in combination with the computer.”

    Really? Care to tell us how it functions differently in combination with a computer? Also would you like to tell us whether or not the computer should actually be recited if you’re going to rely on this?

    “It is like a component”

    Like, but not really.

    “There must be structure on that computer readable medium or the machine couldn’t behavior differently depending on the medium installed.”

    Really? What if the computer was performing this “different” behavior before the medium was introduced? Or what if the computer performs this different behavior with an old medium?

  100. 114

    “And, the MACHINE instructions have a functional relationship with the machine.”

    There is no machine recited in most of my claims. It’s all mediums.

  101. 113

    “The computer readable medium is configured to have a functional relationship. ”

    It is? Then why doesn’t your claim say that it is? Because I’ve never seen such a thing.

    What precisely does the medium have a functional relationship with? A laser beam that is reading data off of it?

  102. 112

    “That’s exactly right. The information is “functionally related” to whatever is reading it (person, computer), but not to the claimed medium that is passively carrying it (paper, memory). So clearly the famed exception to the printed matter doctrine doesn’t apply.”

    It’s good to hear you guys coming to the same conclusions that I came to 5 years ago.

  103. 111

    “Again, the point of the patent system is to allow the little guy to become a 1% through his contribution to technology and business. ”

    Riiiiiiiight. That’s why “the little guy” regularly has the funds to actually use his patent. Right? Right? Preposterous. And that’s also why the constitution mentions “technology” and “business” right alongside “the useful arts” right? Right?

    If that was the case, which it blatantly is not, then I would more whole heartedly support it.

    Fact is, you’re just about as likely to become a 1%er by patenting some things as you are to become one through the lottery. I suppose, from your perspective, “the whole point” of the lottery is to make you a 1%er based on your contributions to (insert whatever lotto funds go to in your state).

  104. 110

    Recent ‘reasoning‘ power?

    NWPA, please be aware that Malcolm has voluntarily admitted that he understands the controlling legal authority of the exceptions to the printed matter doctrine – all his posturing here must be taken in the light that he is purposefully obfuscating things in an attempt (a poor attempt) to merely push his agenda.

    Nothing ‘recent’ about this.

    And no ‘reasoning’ has been present either.

  105. 109

    Are you again insisting that there’s no similarity at all?

    Your legal ignorance is astounding INANE – even when I realize that you are purposefully trying to ignore that beautiful word (and all due apologies to cheerleader Leopold): anthropomorphication.

  106. 107

    If software is such a riddle for you, perhaps Malcolm’s new career can use a cheerleader there too.

  107. 106

    You want to add something to the old computer that is not prior art. End of your argument.

    Moreover, the inventions are different. The structure on the computer readable medium says that it will in combination with the computer play the tone in response to a signal. The computer is disclosed in the spec. The computer disclosed in the spec. is not a computer with a special program, but a general purpose program.

    Is this an example of your recent reasoning powers? If so, I can see why anon has been getting so cross with you.

  108. 105

    I don’t have to apply my “reasoning” because you are mixing up writing about a machine vs. your brain.

    A computer readable medium does have structure and that structure is functionally related to the computer. Period. A component of the machine. Period.

    I don’t need to resolve the dilemmas that have been created by a machine being built to process information like a human. There are definitely dilemmas that have been created and you want to try to resolve them in an iron-age form of thinking. But, they do not need to be resolved. Occam’s razor tells us that we should not be trying to resolve them.

  109. 104

    Are you again comparing your brain to the computer?

    Are you again insisting that there’s no similarity at all?

    The only difference relevant to this discussion is that computers are more reliable than humans at following printed instructions. That doesn’t mean they cease to be printed instructions.

    Try to apply your reasoning to the question of whether a computer-readable music file is statutory.

  110. 103

    The computer readable functions differently in combination with the computer. It is like a component. The two together. There must be structure on that computer readable medium or the machine couldn’t behavior differently depending on the medium installed.

    Cookbook and humans? How is that relevant to a machine? Are you again comparing your brain to the computer? It is true that there are some puzzles when you start talking about the affect of things on a human being. But, fortunately for us, we are dealing today with machines and components of those machines.

  111. 102

    The computer readable medium is configured to have a functional relationship.

    No, it’s configured to carry data. It functions exactly the same no matter what the content of the data. Same as a sheet of paper is “configured to” carry whatever is written on it, and the paper carries it equally well no matter what you write.

    How, pray tell, could a machine do such vastly different things with different computer readable medium if there was no structural difference?

    How could you do such vastly different things with the different pages of a cookbook if there was no structural difference?

    Hint: we’re not talking about whether you can define a technicality whereby writing equals “structure”. We’re talking about whether the writing changes the function of the thing it’s written on.

    While we’re on the subject, what about music files? Functionally related? Structural? Statutory?

  112. 101

    The computer readable medium is configured to have a functional relationship. And, the MACHINE instructions have a functional relationship with the machine. There is structure in magnetic states and this structure matches with the structure of the computer.

    It is exactly like a component of a machine like a gear.

    You continue to mix up your brain with a machine. How, pray tell, could a machine do such vastly different things with different computer readable medium if there was no structural difference? How is that possible to have a machine with the same structure doing different things?

  113. 100

    I don’t know what Kappos’ 101 standard was, but I have a clue.

    If it recites a computer, it passes101.

    If it recites a CRM, it passes 101.

    Right?

  114. 99

    “functionally-related”

    A quintessential example of legal gobbledygook.

    Can someone explain how Dembiczak’s jack-o-lantern face was “functionally related” to the g-rb-ge bag it was printed on?

    With respect to B-claims, the joke is that the instructions on the media are never described. Only the function of the instructions is described. And given that there is no objective relationship between the physical structure of the instruction-carrying media and the function of that media, what we have are composition claims being granted solely on the basis of a new function, without any consideration as to whether the structure of the composition is old or obvious in view of the prior art.

    Consider: a claim is granted to “computer readable media” with instructions that “allow” a computer to play a tone with frequency X when a signal is received by the computer. What happens if I program my old prior art computer to take an old prior art piece of computer-readable media and interpret the information on that media in such a way that my computer performs the claimed function? My computer-readable media existed prior to the claimed composition and lo and behold it has the identical function (the only recited limitation in the claim). Is the claim anticipated? It should be. But I suppose the usual suspects will build the house of cards even higher and “invent” another “doctrine” to avoid that result.

  115. 98

    it seems to me that the computer program instructions are functionally related to a computer, but that the computer-readable medium is simply a carrier

    That’s exactly right. The information is “functionally related” to whatever is reading it (person, computer), but not to the claimed medium that is passively carrying it (paper, memory). So clearly the famed exception to the printed matter doctrine doesn’t apply.

    All information is functional to the reader. Books, recipes, songs, sets of instructions. You read them, and you react differently depending on what they say. If that were enough to get around the printed matter doctrine, it wouldn’t exist at all.

    What’s more, you wouldn’t be able to find a single instance that didn’t fall into the exception, and the fine arts would instantly become statutory as long as you printed on paper or painted on a canvas or incorporated some other kind of tangible “computer-readable medium”. You guys know computers can read anything these days, right? The medium doesn’t make the information content statutory.

  116. 97

    You have no idea of what the transfer is? Really? It is inherent in the context of the discussion. Think about it a little while.

    I see. You don’t really want to talk about the exceptions to the printed matter doctrine. You want to speak in riddles and pretend that you’re talking about the exceptions to the printed matter doctrine.

    Thanks for clearing that up.

  117. 96

    1)”functionally related” must happen for the transfer to be able to happen.

    It’s that simple. Rather than ‘not an answer,’ it is a completely sufficient answer.

    Suppose you have a program on your computer that simulates a player piano. In other words, you can give it files containing songs in a standard format, and it plays the songs.

    Is a music file containing a new song functionally related to your computer?

  118. 95

    And try to read a little – this was directed to Ned, who still remains quite on these important concepts.

    Hmmm.

  119. 94

    It depends on the medium used for posting the input for “Anthropomorphication” – when I first used the word, I was posting in a medium that auto-corrected to the spelling you see. I happen to like the way the word came out, and so continue to use it that way even when the mode of posting does not include auto-correct.

    Here, you focus on the wrong tree (typos on a blog – Seriously?) and ignore the forest of legal points – points you know full well what I mean.

    Coy and pedantic is no way to go through life, son.

    You have no idea of what the transfer is? Really? It is inherent in the context of the discussion.

    Think about it a little while.

  120. 93

    Or he can just kick up a lot of dust by saying something banal like “Put the goalpost back” and comepltely ignoring the fact that the goalpost has not been moved.

    He does this because he does not understand the difference between fact and spin.

  121. 92

    2) – I’ve explained this, and you already know what the word is.

    Right. You’ve said that your spell checker won’t let you spell it correctly. And yet your spell checker has no problem with “satisfactory.” Fascinating.

    1)”functionally related” must happen for the transfer to be able to happen.

    I have no idea what that means. Perhaps you have an antecedent basis problem with “the transfer”?

  122. 91

    spam filter…?

    (LOL – for someone who thinks the concept ‘ridiculous,’ you sure go to great lengths to avoid answering a very simple question)

  123. 89

    1)”functionally related” must happen for the transfer to be able to happen.

    It’s that simple. Rather than ‘not an answer,’ it is a completely sufficient answer.

    The fact you don’t have a ‘satisfacotry answer’ is quite meaningless.

  124. 87

    Well then let’s talk about things that are defined and understood.

    Like, for example,
    1) the exceptions to the printed matter doctrine
    2) anthropomorphication

    OK, let’s.

    1) I’m only aware of one exception to the printed matter doctrine, which is that the content of printed matter can distinguish a claimed invention from the prior art if the printed matter is “functionally related” to the substrate on which it is printed. From 1995 to the present, it has been assumed that Beauregard claims are subject matter, because the PTO dropped its policy against them in the face of a legal challenge.

    Somebody on this site has asked how the computer program instructions on a computer-readable medium are any more functionally related to the computer-readable medium than printed characters on a piece of paper. I don’t have a satisfactory answer for this – it seems to me that the computer program instructions are functionally related to a computer, but that the computer-readable medium is simply a carrier – just like a piece of paper or other printed item. For this reason (and others), I only present Beauregard claims when a client specifically requests one, and I certainly never rely on one exclusively.

    As far as I can tell, the “pro”-patent types that frequent site have only scoffed at the question of how computer program instructions are “functionally related” to the medium they’re carried on, and how that functional relationship is different than for any other printed matter/carrier, and have not provided any answer. I would be very interested to hear one, but I’m not going to hold my breath.

    2) “Anthropomorphication” is not a word.

  125. 86

    This Kappos article on design (thanks to cmauro for the tip) is a real piece of work. As you read the following excerpts, keep in mind that the design patent system in the US makes the utility patent system look like a perfectly functioning machine. As Dennis has shown, design patents are essentially registered without any examination and, as many threads here have demonstrated, that is the way that design patent applicants love it! During his tenure at the USPTO, Kappos did nothing to fix the broken and bizarre design patent examination system. As with utility patents, his major “contribution” was simply to turn the dial on the design patent grant numbers up to 11.

    Check out these quotes, courtesy of the World’s Baldest Cheerleader:

    That is the story of design — innovators blurring the lines of the traditional intellectual property realms of patents, trademarks and copyrights to deliver … entirely new markets

    the new frontier for IP now and tomorrow is in the increasing convergence of IP embodied in design.

    And this paragraph is especially amusing. The question marks were probably put there by an editor, who forgot to remove them. LOL!

    [Design] does not require enormous research-and-development??? investment…. Creative people everywhere can, and do, create new designs. And where better to invent them than in developing markets, where inaccessible function is effectively irrelevant function?

    What the??? Here’s a better question: where better for Slick Texas Timmy to file his design patent than in the USPTO, where prior art is inaccessible and examination is irrelevant? That’s the message Kappos is sending. He knows better than anyone how the game is played because he saw it being played right under his nose. Heckuva job.

  126. 85

    encouraging advancement of the technical arts by allowing the inventor to make money off of his invention

    Put the goalpost back. Thanks.

  127. 84

    why are you not talking about specific things I have asked of you?

    Calm down, Tr-llboy.

  128. 83

    We are all very fortunate that David Kappos served the public so well in his tenure at the patent office.

    ****smooch****

    Lee Van Pelt has evaluated patent strategies for investors and developed strategies and prepared patents for emerging companies in Silicon Valley for over fifteen years.

    Gotta stick together, you know.

  129. 82

    The problem with big talk like that is that we really don’t understand what he’s talking about. His discussion of importance of avoiding silos reminds me of kinds of claims that issue From the patent office every day where the scope of protection is Ambiguous at best. This leads to overprotection because of the ambiguity.

  130. 81

    Well then let’s talk about things that are defined and understood.

    Like, for example,
    1) the exceptions to the printed matter doctrine
    2) anthropomorphication

  131. 79

    What are you talking about?

    And perhaps just as importantly, why are you not talking about specific things I have asked of you?

  132. 78

    In a further example, we’ve had discussions here about Apple’s swipe to unlock patent. People said here that that was a software patent. I asked why?

    I never got an answer – from anybody.

  133. 77

    Just for example, would he consider the claims in the Benson case to be claims to a software invention, that are patentable in his view? Woul he consider the claims in the Bilski case to be a software and patentable in his view?

    What is he talking about?

  134. 76

    Again, Kappos defined what he believes what a my software patent is, but he failed to get a single example. Because of this, we still have no idea what he is talking about when he Talks about software patents and the controversy surrounding them.

  135. 74

    Malcolm does not do answers.

    Watch as he attempts to spin this around and ask you to answer the question you ask of him.

  136. 73

    Um, okay? So if encouraging advancement of the technical arts by allowing the inventor to make money off of his invention isn’t the point of the patent system, then please do enlighten us all as to what the point of it is.

    I can’t wait to hear this answer.

  137. 72

    This is an outstanding article. Well written. Well researched. Brief and to the point.

    We are all very fortunate that David Kappos served the public so well in his tenure at the patent office. More progress was made in his years there than was made during the previous 20 years. Whatever he does in the future, I wish him the best. He is an outstanding leader.

  138. 71

    Nice rant – obviously the business I reference is the business of obtaining patents.

    You clearly do not believe in the service you provide, and to which you are ethically required to be devout to.

    The dissonance is like a cancer, and is reflected in your general nastiness to all, and to anyone showing a belief in the patent system (hence the pejorative T_bagger).

    As to your advice, it is clear from your lack of answers to the points I do raise and the questions I ask that you will not allow yourself to be persuaded. I laugh when you indicate ‘actual data,’ as you show no knowledge of what data is, insisting that your spin is data – you do not engage with any sense of intellectual honesty and you are here only to push your own soapboax agenda.

    It makes the (rare) times you venture into substantive legal discussion and your immolation of your agenda all that more delicious.

  139. 69

    Get out of this business

    What “business” is that, Tr-llboy? The “business” of quietly listening to the richest people in the country and giving them what they want because they are so Wise and So Serious? Or is it the “business” of trolling blogs, mindlessly repeating the talking points handed down by those people (using bold letters and all caps whenever necessary), and insulting anyone who disagrees as being “communist” or “anti-patent”?

    I was never in that “business”. That’s your “business”. I can certainly understand why you and your superiors would like legally and scientifically educated people like me to go away and stop questioning your awesome proclamations about how “every patent creates a job” and “children will die if we kneecap NPEs”. But that’s not going to happen.

    Here’s some advice for you: learn how to write persuasively and come up with decent arguments backed by actual data instead of mythology. And learn how to admit when something is broken and f—-d up. Good luck.

  140. 68

    there is no point in your posts

    Sure there is. You wrote: the public will reward the Big Corp who can best smash any little innovative guy that dares enter their market space

    I pointed out how absurd your assertion is. Likewise with your baloney about “the great equalizer.”

    As for this spewage: techdirt-like gibberish, self-conflicting between functional and the “song” or “novel” – which are failed analogies

    it was highlighted simply to remind people that you are one of the worst writers of English on the planet. If there’s anyone around here who needs to find “something else to do”, it would be you. Remember the guy who trolled this blog for years under scores of aliases pretending to do battle with a “vocal minority” and posting and reposting endless streams of barely comprehensible insults and nothing else at anyone and everyone who didn’t agree with you? That was you. It’s still you. Just read any thread.

    there is no shame in admmitting failure

    Uh … ok. Is there shame in admitting that you completely made up a ridiculous scheme for avoiding prior art by using mail room staff to screen and destroy registered letters sent to attorneys? Apparently there is great shame in that because you still haven’t told us the name of a single firm who does that, and you never will. Nobody will. And you know why.

  141. 67

    it’s about the least efficient way possible of achieving the goal you describe.

    Of course it’s inefficient. We wouldn’t want 95% of us to be 1% of us, would we?

    Incidentally, how many of the 1% made their fortune with any meaningful help from patents? I’m guessing about zero percent.

  142. 66

    greedy tools he is shilling for

    Get out of this business, Malcolm, and into something you can believe in.

    For your own good.

  143. 65

    Design: The New Frontier of Intellectual Property

    If Kappos and the greedy tools he is shilling for actually believe this, then things are far, far worse than they seem.

  144. 64

    the point of the patent system is to allow the little guy to become a 1% through his contribution to technology and business.

    Pretty sure that’s not “the point of the patent system”. It sounds more like somebody’s fantasy. In any event, if that’s “the point”, it’s about the least efficient way possible of achieving the goal you describe.

  145. 63

    Again, the point of the patent system is to allow the little guy to become a 1% through his contribution to technology and business. I understand why rich liberals want to keep everyone else poor, but I’ll never understand why poor liberals want to make sure that they can never become a rich liberal.

  146. 62

    Here is another recent, rather surprising, article by Mr. Kappos in NLR on the increasing importance of design patents and how the current system of IP fails to protect new high-tech products. Quite a change from his time at the USPTO where he essentially ignored design patents and interrelated IP concepts.

    Design: The New Frontier of Intellectual Property
    We must move beyond the traditional silos of patents, trademarks and copyrights to a dialogue about how the system as a whole can champion design in the 21st Century.

    link to law.com

  147. 60

    All that means is

    LOL – or exactly opposite of what you insinuated as to how “really hard it is to understand.”

    And no, the ‘but for’ canard is to your insinuated ‘it takes a genius’ false air of superiority about who should be allowed to have a patent. (so sorry that your first career fizzled out in the lab).

    To keep up with you I would not only need to go into reverse, but I would have to bury my head in a pile of shtt – just like you.

  148. 58

    “Patentability shall not be negated by the manner in which the invention was made”

    All that means is that you can’t invalidate a patent just because, as a factual matter, the inventor came up with the idea while sitting on a t–let.

    A patent can still be invalidated by recognizing the fact that anybody could have dreamed it up while sitting on a t—let.

    you want to lean on your canard of “but for”

    That would be David Kappos. Please try to keep up, Tr-llboy.

  149. 55

    It’s
    iro
    nic

    to a
    fau
    lt

    that you Malcolm are the site’s biggest mewling
    QQ
    ing
    cry
    b@by,

    bar none, and that your style is merely the
    1ef
    tist version of everything you de$pi$e about the Right.

    You don’t see it – or don’t care about it if you do.

    You really need to find work you can believe in.

  150. 54

    Typical gre…-style whining

    You assume far too much – and the (perpetual) whining by you fits that style that you dub “Repub1ican.”

  151. 53

    Filter catching – in pieces

    The patent t–b-ggers response is to go ballistic and pretend that “c0mmunists” are working with “1eftist academics” to “eviscerate” the patent system and shut it down entirely.

    This would be funny – except you perpetually display a N1M_BY_ism that be_tr@ys your lack of understanding.

  152. 51

    Squint as hard as I can, there is no point in your posts at 6:07 and 6:43 to be found.

    attorneys are sort of a couple rungs down on the awesomeness scale

    I have previously advised you to seek employment in a career that you can believe in – the self-loathing that is evident in your posts from working in the patent field is doing horrible damage to your psyche.

    You can do something else with your life. There is no shame in admmitting failure for a second career and moving on.

  153. 50

    Really hard to understand

    LOL – It is too bad that 103 does not include a provision noting that the manner of invention does not matter…

    …oh, wait, it does: “Patentability shall not be negated by the manner in which the invention was made

    It seems you want to lean on your canard of “but for” – is that what you are implying?

    keep up with these utterly unforseeable ‘technological advances.’

    Nice strawman – no one is saying that a real test under 103 for obviousness should not be applied.

    That is quite different than what I actually posted – and your crrppy “House” style argument that the computer does what computers do as some type of talisman against patent eligibility (you know that phrase in 101: “or any new and useful improvement thereof“).

  154. 49

    FURTHER invention (i.e. software).

    You don’t need to write any software to get a claim to a new “computer-implemented” j–k patent. You don’t even need to know how to write it. You don’t even need to know what software is (which is good because software is really, really hard to understand; that’s why fancy schools typically don’t teach kids how to program until kids are like 8 or 9 years old).

    All you need to do to get your patent on your “software invention” is dream up something “new” that nobody previously tried to patent (at least, that’s how the USPTO seems to think it should work). Someone already described using a computer to identify available real estate? Oh, well, my new computer identifies available lamps in a lamp store. And this other new computer identifies lamps that aren’t available. And this new computer does both. And this new computer identifies which hand-held computer your virtual friend might want to buy from a store that has lamps that can be purchased online. And this new computer uses GPS to provide instructions on where to buy a hand-held device such as one that was identified by the other new computer, wherein the instructions are transmitted to a second hand-held device. Did I say hand-held? I meant “wearable”. It’s so hard to keep up with these utterly unforseeable “technological advances.”

  155. 48

    Yeah well, MM what’s your answer? I read you espousing the most silly nonsense regarding information processing patents and design patents.

    Do you have a real suggestion?

  156. 47

    anonthe public will reward the Big Corp who can best smash any little innovative guy that dares enter their market space

    Right. Like the public rewarded the giant Ben & Jerry’s company when they entered little Dreyer’s market and smashed it.

    Incredible insight there.

    Like most Americans, I personally go out of my way to buy products by giant corporations immediately after I learn that they ripped off someone like me (or better yet, someone with even less money and nothing to lose!). It pleases most everyone to reward companies like that. This is why Americans have always revered greedy corporate lawyers and are universally disgusted by any attempts to tarnish the image of these saint-like figures. Patent attorneys are sort of a couple rungs down on the awesomeness scale but that will surely change as more people are sued. Watch and see!

  157. 46

    I guess we can abstract away all of chemistry too.

    It’s fascinating, isn’t it? A bunch of lawyers get together, buy a bunch of j—k patents, and start shaking down industries for cash. Hundreds, maybe thousands of businesses are adversely affected, not to mention all the employees of those businesses. The reponse of the patent t–b-gger crowd? Hey, this is just a cost of doing business in this great country. Just pay the money and feel good about not infringing!

    Then someone points out that maybe this isn’t the best use of the patent system and proposes some fixes. The patent t–b-ggers response is to go ballistic and pretend that “communists” are working with “leftist academics” to “eviscerate” the patent system and shut it down entirely. Typical greedy Republican-style whining. Seen it with the NRA. Seen it with tax increases. Seen it with the banksters. Seen it with healthcare. But it really does take the cake when these one percenter types like Kappos scold everyone else for not seeing the “long term” awesomeness that’s just so obvious while you’re stuffing your face at the Inventor of the Year Award Ceremony. Maybe Kappos can get a think tank to pay him additional money to give speeches to protect the interests of his rich friends. He should give Richard Epstein a call.

  158. 44

    patents are a great equalizer.

    Right. That’s why in an age when far more patents are being granted than ever before in the history of the United States, we have …. more income disparity than every before in the United States. Speaking of which, what’s the average income and net worth of your typical “independent inventor”? Who has the stats? That seems like relevant information before we pull out our handkerchiefs and start weeping “for the children” who will suffer if we don’t coddle these beleaguered pioneers struggling to pay off their squalid trailers. Oh wait. Trailers don’t have garages.

    who exactly coined that term

    As if it matters.

    techdirt-like gibberish, self-conflicting between functional and the “song” or “novel” – which are failed analogies

    Did you say something about “gibberish”, Tr-llboy?

  159. 43

    By the way, MM, have you ever read or seen a history of the internal combustion engine?

    I guess we can abstract away all of chemistry too. After all after the periodic table of elements and learning how to make any molecule based on its chemical symbol isn’t all the rest just trial and error with no inventive concept.

  160. 41

    In re: the explosion of ridiculousness present in this publication, yes, I may well have. The man’s shear gall of coming in and trying to backhandedly justify his blatant disregard for the law for so many years is just plain sickening. Would that he had done a better job of explaining his apologetic position while in office so that he could be called out officially by the press etc. for it. Now of course hardly anyone cares about him to write about this I doubt.

  161. 39

    In re: the explosion of tar dation present in this publication, yes, I may well have. The man’s shear gall of coming in and trying to backhandedly justify his blatant disregard for the law for so many years is just plain sickening. Would that he had done a better job of explaining his apologetic position while in office so that he could be called out officially by the press etc. for it.

  162. 38

    “you should realize that you have no impact on the issues based on your state of being so clueless.”

    Which is why after I start spouting off about issues they soon get resolved.

    I know, I know, I tots have no influence, and all these issues were suddenly settled by the supremes shortly after I started raising a ruckus by shear coincidink!

  163. 36

    Congress can always step right in brosef and everything will be just fine.

    You mean like they already have with the expansive terms of 101 – and the removal of judicial authority (common law) of setting the 101-level of invention the last time the Court got too uppity and anti-patent?

    You mean like that?

    LOL

    Time for the Court to remove its fingers from the patent pie (or from the nose of wax – whichever metaphor you find more fitting).

  164. 35

    6,

    You remain clueless. And while you have every right under the First Amendment to “spout off,” you should realize that you have no impact on the issues based on your state of being so clueless.

    But hey, thanks for spouting off.

  165. 34

    Perhaps if K man and his “team” hadn’t make such a mess of applying 101

    It’s the Supremes that have made the mess 6.

  166. 33

    And let me hazard a wild guess that you are not an attorney, and have no real understanding of the legal nature of patents.

  167. 32

    Point one is seriously flawed courtesy of the joinder provisions of the AIA, amongs other things.

    Gee – that’s a surprise.

    Point two is simply poor reading on your part – check it again as the validity factor is 80%.

    Point three is simply more poor reading on your part.

    Why didn’t you just write Waaa and end there?

  168. 31

    And then the public will reward them if they are sufficiently impressed by the offering by BUYING their products.

    Quite misses the point of the i4i story there 6.

    What you really mean to say is that the public will reward the Big Corp who can best smash any little innovative guy that dares enter their market space.

    What Malcolm rails against is the fact that patents are a great equalizer. Note how quickly he descends to the “Troll” villification and recognize who exactly coined that term and why (hint: Big Corp to smash the little guy and preserve the patent thicket and nuclear attack options against the very force that provided the feature – not the bug – of the power behind a single good patent).

    Malcolm QQ’s but leads you down the wrong path.

    The rest of your rant trails off into techdirt-like gibberish, self-conflicting between functional (which is exactly the type of thing patents are meant to protect) and the “song” or “novel” – which are failed analogies of the anti-software patent crowd, and for which copyright is more apt.

    LOL – maybe Malcolm will weigh in with his usual completely wrong understanding of what the protections afforded by patent and copyright mean.

    Your last paragraph rather paints the picture that you don’t get the fundamental purpose of the Quid Pro Quo of patents at the most basic level.

  169. 30

    link to cnn.com

    Speculation has been rampant in recent months that Apple might unveil an iWatch.

    A POWERFUL COMPUTER BRAIN in a small device that FITS IN YOUR HAND? That’s old. Oh, but this one has a strap attached to it! Plainly not worthy of a patent without more limitations (perhaps some made-up words with three syllables will make it sound really cool).

    But then … without a patent, why would Apple bother “innovating” this device, which is surely on my Grandma’s “wish list” (meaning, her virtual wish list, which is nothing at all like the old lists people used to make with crude tools like “pencils”)? What would be the point? If it’s not patented, I could just make my own iPhone watch and sell it for pennies.

    Oh, wait, I know: it’s going to be some really clever new watch design. Maybe the face will be square-shaped with smooth corners or something similar that has never, ever been contemplated before.

  170. 29

    that describe using computers to do what computers do.

    LOL – good look with having a computer ‘do what it does’ without any FURTHER invention (i.e. software). The great “House” canard.

    I seem to recall a Grand Hall experiment run on this very blog along those lines.

    Anyone have a link to that?

  171. 28

    If we wanted to get the “maximum possible” then we should pay all application fees for the applicants.

    No doubt. And we should expand the system to include patenting purely mental processes, mathematical equations, laws of nature, abstract concepts, and art. That wouldn’t cost us a dime. Just think about all the price competition and choices that will result! If only we Americans would see the big picture like David Kappos does while sitting in his New York City skyscraper, we could learn to appreciate threatening letters telling us to license one of the j—ky patents he granted. What’s a few thousand dollars when the lives of our children are at stake?

  172. 27

    “If our country’s short-term thinking decreases incentives to invest in perfecting cures for diseases, even at the margins—say 10%—are you prepared to confront the person who is suffering because their disease is the one that did not get addressed, and explain that their suffering is necessary so that you could have cheaper access to previously invented treatments

    Maybe Kappos should lobby for the NRA or Americans for Tax Reform on the weekends, when he’s not peddling Patent Salvation. He’s got the “we’ll take our ball while you take the pain” schtick down pretty good.

  173. 26

    Yeah I’m aware, I’m just a young upstart spouting off quite a bit on my interwebs.

    But then, this is Merica, and I hear that one of our greatest strengths is the ability to experiment with our law. I see here a wonderful opportunity to do so. And the effect of such an experimenting is almost assuredly going to be the same as that of KSR, a big ol bunch of hardly anything except saving people time and trouble.

  174. 25

    7,779,440

    1. A method for providing access to content with an interactive program guide, comprising:

    Shall I just let everyone guess what awesome non-obvious steps came after this preamble? Hint: there’s a POWERFUL COMPUTER BRAIN involved! Okay, enough suspense:

    identifying, using control circuitry, a media type of a currently viewed channel;

    designating, using control circuitry, the media type as a preferred media type, wherein the media type is associated with one or more channels;

    allowing a user to designate at least one favorite channel for the preferred media type using an input device; and

    constraining navigation on a display device to only favorite channels of the preferred media type.

    Truly amazing. Who could have guessed that computers would have the power to “constrain navigation” (LOL) of a TV set in manner designated by the programmer? Before the invention of computers in 1978, only my grandpa was capable of doing that, and only while he was watching professional bowling or a football game (we turned the channel when he fell asleep).

    When will these wonders cease? Without this patent, we Americans might have had to wait until 2050 or 2100 before we could harness POWERFUL COMPUTER BRAINS to control the channels on our TVs. Thank you, Dave. Our children thank you. Well done.

  175. 23

    “Can you dismiss this example as inapplicable to software innovation, knowing that much modern life sciences innovation that relies on large-scale data processing is dependent on software innovation?”

    I’m not even sure that I need to dismiss it. This “large scale data processing” probably involves more than changing around some programs in the computer and may well end up eligible depending on how you arbitrarily decide to claim it.

    But presuming that I do for the sake of K man’s “argument” such as it is, yes I will until there be shown some reason that someone’s life depends on an invention that could not be claimed to be properly statutory in the framework as currently implemented by the USSC. Since that will likely never happen, and is likely impossible by design, I see no need to further address his hypothetical doomsday scenario.

    “Far from signaling dysfunction in the U.S. patent system, the current spate of litigation actually testifies to its strength.”

    Yes, it is dysfunctional while strong. We know. The terms are not mutually exclusive.

    “Our patent system isn’t cheap, and it isn’t perfect, but it has contributed mightily to bringing more innovation to the world than any other incentive system in history.”

    Again, you’ll get no argument from me on this.

    “And when a powerful in-centive system causes major technological advances spawning major break-through products, competition reasonably and understandably enters the space, providing choices, alternatives, follow-on innovation, and price competition.”

    How, precisely, does someone introduce an “alternative” when someone has claimed all the “alternatives” by simply claiming in a fashion that does little more than set out general guidelines to “solve a problem” (often in functional terms). Just how does one go about that Davi? Because if we knew that there was a way then your claim doesn’t preempt, and is not judicially excluded. Likewise your claim is supposedly “worthless” in this space because you let them design around. The law currently accounts for exactly the issues you bring up Davi, and it does a wonderful job of addressing them.

    “But each time there is eventually a satisfactory endpoint.”

    Which in this case will be reached when the supremes go ahead and pick up CLS bank and put an end to abstract nonsense in the software patenting space. Everyone will go forward with their lives just fine Davi. I promise.

    “Our country gets the maximum possible amount of innovation”

    If we wanted to get the “maximum possible” then we should pay all application fees for the applicants. And pay people like myself to do nothing but sit in a room and “invent” for the country. This entirely new patent system would cost less then a few fighter planes.

  176. 22

    7,865,605

    Another classic:

    1. A method being executed by software operating on a hardware processor for providing banking services comprising at least one of funds transfer services, investment services, and trade services, over a network from a host to a bank customer, comprising:

    receiving a request for access to the banking services from the access location via the network;

    receiving, by the host, a communication from a local access application at an access location associated with the bank customer, wherein the local access application is configured to provide a plurality of tiers of service access;

    identifying a user from a plurality of users associated with the bank customer, wherein the bank customer is an entity having more than one user or groups of users;

    identifying a tier of service access associated with the user; determining which of the at least one of the banking services within one of the plurality of tiers of service access the user is entitled to access;

    and providing access at the access location for the user to the determined at least one banking service.

    That one went to Dave’s buddies at Citibank in early 2011. “Tiers of bank service”! You can select them! Man, that’s one POWERFUL COMPUTER BRAIN.

  177. 21

    LOL. This was is even better. You know it’s truly awesome and patent-worthy when THE POWERFUL COMPUTER BRAIN actually FITS IN YOUR HAND!!!

    7,777,747

    1. A method for assisting a user in identifying a bird observed in the field using a bird identification tool implemented on a handheld computing device having a display, comprising:

    displaying at least part of a bird that contains a plurality of selectable anatomical regions on the display of the handheld computing device;

    constructing a set of bird identification filter attributes based on user input to use in searching a bird identification database to determine which birds likely match the bird being observed in the field;

    when the user selects a given one of the plurality of selectable anatomical regions, displaying on-screen options on the display with which the user interacts to assign an appearance characteristic to the given anatomical region, wherein the given anatomical region with the assigned appearance characteristic forms one of the set of bird identification filter attributes;

    updating the displayed plurality of selectable anatomical regions when the given one of the selectable anatomical regions is selected to provide the user with a visual record of current bird identification filter attributes that have been selected;

    searching the bird identification database using the bird identification filter attributes; and

    presenting corresponding search results to the user on the display of the handheld computing device, wherein the search results contain images of birds that match the bird identification filter attributes.

    Really deep, complicated stuff impossible to imagine before the discovery of the genus of animals we call “birds”.

    Issued Aug 17, 2010

  178. 20

    “Probably a lot; perhaps everything you have.”

    Mostly because we make less than you bro K man.

    “If our country’s short-term thinking decreases incentives to invest in perfecting cures for diseases, even at the margins—say 10%—are you prepared to confront the person who is suffer-ing because their disease is the one that did not get addressed, and explain that their suffering is necessary so that you could have cheaper access to previously invented treatments?”

    Our country already disincourages finding “cures”. We instead heavily incentivize companies to devise “treatments” for the symptoms of diseases so that they can continue to profit from selling the treatment (under patent maybe). Thus we have a huge pharma industry devoted to treatments, and a tiny tiny tiny “industry” (if you can even call it that) devoted to curing diseases.

    I swear to go d, did this guy just fall off the turnip truck when it comes to talking about these things? He just got throught being the director of the patent office for goodness sakes! If he wants to incentivize cures then I’m right behind him, but our current setup is far from an incentivization for such.

  179. 19

    But not the commie Posner. Mr. Inventors do it ’cause they love to. Reminds me of the time when the plumber put in a new toilet for me. I told him that I’d pay him, but commie Posner told me that people work without expectation of reward and therefore it was unnecessary for me to pay him. Funny, he didn’t know who the commie Posner was and got quite upset.

    Good thing I was in New Hampshire so he couldn’t sue me.

  180. 18

    “Would we be happy with less innovation, even at the margins?”

    I think we’ll survive, and if we see a notable decrease, guess what? Congress can always step right in brosef and everything will be just fine.

    If, on the other hand, all those patents disappeared and nothing of consequence happens, nobody really notices, and the sky is firmly still in the heavens then I think we’ll be just fine as well.

  181. 17

    6, I work with start-ups, and I’ve worked for a big corporation. I’ve been an inventor. I am a patent attorney. You have no idea how our system works. None.

    6, you are no John Kennedy.

  182. 16

    “Without pa-tents, many entrepreneurs would not innovate;”

    So let them not innovate while others pass them by in the market? They’ll get to “innovating” i.e. writing some code, soon enough.

    “many new startups would not get funding from investors to grow and hire workers; ”

    No kidding? That money will then simply sit around or will it go to something else productive? Hmmmm?

    “and many young compa-nies would have no means of entering markets dominated by incumbent firms selling last generation products”

    Many will, many others won’t. I’m hardly crying a river at this point.

  183. 15

    “What this current spate of litigation is actually about is our continuing na-tional effort to find the proper balance between the desire of consumers to have today’s products at the lowest possible prices, and the need to invest in the fu-ture by providing incentives attractive enough to induce capital to flow to the risky business of invention over all the other human activities vying to attract capital in a competitive market.18”

    In other words, David here thinks that inventing in the software space is really a huge to do that only(?) those with capital are “inventing” in.

    But that isn’t really the case that empirical reality bears out. As noted by software patent proponents everywhere, anyone can implement (and likewise invent) “inventions” in this space with naught but a basic education and some free time to write up an application and a part time job to pay the application and issuance fees.

    And the fact that some big corps throw gobs of money at some projects does not negate the above.

  184. 14

    you fail to realize that the only way to keep big guys from ripping off upstarts and independent inventors and putting them out of business with their economy of scale is through the patent system

    Fact: The overwhelming majority of innovative businesses have no use for patents and are rewarded for their innovations in the form of customers.

    I’m not sure what awesomeness you believe your “upstarts” are inventing. I fully support a functioning US patent system that denies patents to non-inventions that merely describe “new” ways of making money or that describe using computers to do what computers do.

    As for “independent inventors”, this microscopic group of citizens is essentially a prop for the p-tent t–baggers such as yourself to drag out whenever any “anti-patent” change in the law is perceived. According to the paranoid mythology they’ve built up around themselves, they are busy working magic in their garages and creating all the country’s jobs while “big guys” work around the clock to “rip them off.” Reality is probably closer to the opposite.

    Do these “independent inventors” want better protection against being “ripped off”? No, of course not. More laws is just more government, which is the worst thing ever. No, what these “independent inventors” want is exactly what the p-t-nt t–b-ggers want: more patents, easier to get patents, easier to enforce patents, all the time.

  185. 13

    He even has the ga ll to start his paper out:

    “THE SOFTWARE PATENTS INVOLVED IN THE SMART PHONE PATENT WARS ARE PREDOMINANTLY VALID”

    Try applying the law, and as J. Moore reminds us, nearly all or all of that referenced is set to disappear into the vapors of 101 from whence they supposedly came.

    Perhaps if K man and his “team” hadn’t make such a mess of applying 101, and indeed hadn’t invented their 101 standard out of whole cloth, then we wouldn’t even have been a subject upon which he could now write this paper.

  186. 12

    @David J. Kappos

    1) In recent years BIG companies bring MINORITY of litigation. Non Practicing Entities bring MORE litigation.

    So stats based on minority of litigation WILL BE FLAWED. (And did Your statistics teacher tought You NOT TO FILTER population based on any criterium, but random selection???)

    2) Even when You assume certain pool of possible litigations You point out that ONLY 33% of it have any indication of validity given from the court…

    So Your STATS AIN’T complete… And from MINORITY (NPE rule litigations), You substract another MINORITY. (And heavn’t you statistic Teacher tought You not to exclude cases that do not suite Your thesis.)

    3) You call 17 cases out of 113 clear majority??? And claim that courts are testers of patent validity???

    (First do not need explanation, for unacustomed to US patent law. Patents if granted ARE VALID and have pressumption of validity. And at least one big case in smartphone wars resulted in multi bilion revard WITHOUT consideration of validity of patents at stake…)

    In other words Your article is piss poor attempt to gather RELEVANT data, that is clearly missing on statistical relevance, and basic math. While it avoid BASIC facts.

    Why didn’t You just wrote “because!” and ended there.

  187. 11

    “When Kappos says “we Americans”, does he mean “we Americans with a net worth greater than several million dollars who earn $500-$1,000,000 year?”

    Classic 1% behavior to scold the average guy for seeking “short-term gratification”. If only the average guy could stand on Kappos’ mighty and reasonable shoulders and see what treasures await everyone if, and only if, we continue to hand out patents in record-high numbers to his clients.

    Did Kappos happen to mention patent attorney trolls like Jay Mac Rust in his discussion of people interested in “short term gratification”?”

    I know right?

  188. 10

    I rather agree with you K man. We do need to decide whether we will want to pay for such developement in the software space. However, the bare fact of the matter is that we are not the ones that will be making the decision. Some manager or owner of some business will make that decision. And then the public will reward them if they are sufficiently impressed by the offering by BUYING their products.

    Furthermore, “protection” for a mere function of a device, or “protection” for authorship of some software in the patent context is not the way to go about this even if we were making the decisions. It BLATANTLY is not. Allowing them to claim by functionality is nothing more than giving them a windfall. And allowing them to claim their authored works presents the same problems that allowing someone to patent a song or novel does, even though you like to arbitrarily try to define a “function” vs. “non-function” line to try to distinguish the two.

    Patenting is not the way in which we should decide if we want to invest in these things (indeed, crowdfunding is probably much better, just by the by) and even if it were then it would be such a collosal cluster mess up as it has been for the last ten years so as to make the whole thing not worth doing anyway.

  189. 9

    “Thanks for the correction.”

    You’re welcome. But as Vince (i.e. the Sham-Wow guy) used to say, “I can’t do this all day.”

  190. 8

    That patent issued in May, 2008. Kappos was confirmed by the Senate in August, 2009.

    Heckuva job.

    Thanks for the correction. It’s true, in 2008 Big Dave was still busy at IBM, shepharding airplane bathroom queue “inventions” through the system (talk about “delayed gratification!”).

    I’ll dig up one of Kappos’ Greatest Misses while I’m gnawing at my sopprasetta sammie.

  191. 7

    The funny part of this post is that you fail to realize that the only way to keep big guys from ripping off upstarts and independent inventors and putting them out of business with their economy of scale is through the patent system. Didn’t you claims to be familiar with i4i at one point?

  192. 6

    That patent issued in May, 2008. Kappos was confirmed by the Senate in August, 2009.

    Heckuva job.

    You really s#ck at this.

  193. 5

    Lest we forget, David Kappos granted this patent, among many other similar pieces of ridiculous j–k:

    7,377,233

    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.

    Heckuva job.

  194. 4

    Big Dave: 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.

    When Kappos says “we Americans”, does he mean “we Americans with a net worth greater than several million dollars who earn $500-$1,000,000 year?”

    Classic 1% behavior to scold the average guy for seeking “short-term gratification”. If only the average guy could stand on Kappos’ mighty and reasonable shoulders and see what treasures await everyone if, and only if, we continue to hand out patents in record-high numbers to his clients.

    Did Kappos happen to mention patent attorney trolls like Jay Mac Rust in his discussion of people interested in “short term gratification”?

    we and our children will have even more, and better, innovations to enjoy in the future

    And more lawsuits. Perhaps litigated by David’s new firm. Truly our children should be happy about this.

  195. 2

    Do it for the children!

    Oh, and Mom!

    And Apple Pie!

    And the Flag!

    (Not saying it’s a bad article; just way tired of the cliched “our children’s future!” meme.)

  196. 1

    How in the world was this guy ever a government bureaucrat, much less one appointed by Obama? I’m amazed that he retained his sanity.

    You’re a true servant Mr. Kappos, and I thank you for that.

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