USPTO Director Admits Patents Do Not Equal Innovation; So Why Is He Pushing For More Patents?
from the questions-to-ponder dept
We've been pretty disappointed with David Kappos as the head of the US Patent Office. He came into the office with plenty of praise from people who insisted that he also recognized the serious problems with the patent system, and would try to fix them. Instead, to date, he's simply massively ramped up the number of patents approved. I had hoped to go see Kappos speak this past weekend at SXSW, but unfortunately his talk was scheduled at the same time as one of my own panels. Thankfully, Greg Ferenstein was able to sit down with Kappos, and was able to get Kappos to open up on some important issues, including admitting that patents are not the same as innovation "by any stretch" -- and that the USPTO was really spending a lot of effort to understand how to measure innovation, rather than just patents.Ferenstein also got Kappos to talk about some of the work that economist Stuart Graham is working on. We were one of the very few publications to mention that the USPTO had hired Graham last year, noting that Graham seemed like a good hire, with a background in looking at what the data actually said about the impact of intellectual property on development, something that's been missing in many policy debates. It appears that Graham is continuing to do that kind of work for the USPTO and that Kappos is paying attention to what Graham is uncovering. While Kappos still seems focused on getting more patents through (and also apparently wants to stop copyright infringement -- which is outside of his basic mandate, so I'm a bit confused as to how that came up...), it's nice to see that he's at least open to more realistic views of what's going on.
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Filed Under: david kappos, innovation, patents
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So why is he pushing for more patents?
It seems like more and more government positions, especially those in relation to regulation and commerce, are "sit there and nod" positions.
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I'm guessing that's what he is being paid to do.
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Apples and Oranges?
If an increased number of flawed patents are injected into the marketplace -- then what are the consequences? Well, for one, this assures more continued business for the law firms litigating these instruments of extortion. If there were a way to assure that these new patents were not the flawed product of a dysfunctional system, then perhaps they would be able to contribute to the process of innovation. But one of the principal reasons for patents at all is their ability to "teach" and stimulate innovation. What lesson can be learned from reading a flawed patent? This is where the element of "innovation" breaks down. Patent applications are based on the citation of prior art -- if that chain of citations is flawed, then any subsequent citation will probably be tainted.
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All members of the corpocracy want to stop copyright infringement at all times. They talk about it endlessly. When they aren't talking about it, they're thinking about it. When they sleep, they dream about it.
The corpocracy wants copyright infringement to stop for a very simple reason: copyright infringement is uninhibited transfer of information. It can't be controlled, and can't be locked up. It chips away at the walls of their monopolies.
Of course, that doesn't answer why this particular member believes he wants to stop copyright infringement. If asked, Mr. Kappos would probably quote a study funded by a lobbying organization (and debunked months ago). That's the usual response, anyway.
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Hopeful but not convinced the USPTO means well
Graham shows
patents = innovation
is missing an important term:
FIX: patents + products = innovation
Now major corporations can proceed unchecked.
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saboteurs
That's exactly what the large multinational firms (and their saboteurs) pushing what they call reform wants everyone to believe.
Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.
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Re: saboteurs
Consider that NTP's patents were considered valid by a jury, but when reexamined by the patent office (which is what a patent requires to be valid) many were rejected, some rejections were final.
Consider also that many times when sued a company will decided to settle rather than fight in court simply because it is cheaper.
Consider also, that patents that are most likely garbage are not going to be used in litigation directly, but only with the threat of litigation (for example, being able to say "You violate x number of our patents, so pay up").
The other way to read that, is that half of all litigated patents are bunk. That's really piss poor. Keep in mind also, that the payoff to winning a patent suit is many many times greater than the costs to litigate. Patent lawyers aren't dumb (in that regard anyway). They know that they might lose a few suits, but winning one suit more than makes up the loss. If after a few years your patent has no value, then your "invention" did not have enough value for the public to grant a patent. Rememeber, a patent is a government granted temporary monopoly in exchange for new knowledge. If three years was all it took for someone else to independently come up with your super secret knowledge, you shouldn't be given a 21 year monopoly on that knowledge. If there were no patents, then the "little guy" could just as easily copy the large multinationals. So 2% of all cases being about patents vs all the other possible cases that could be brought up and you consider that a win? And 70% being settled before trial is a bad thing. Especially when half of all patents in trials are thrown out (your statistic, see above). It shows that defendants know that odds are the lawsuit against them will be dismissed but still settle anyway. See, whether they win or lose they will have to pay the expense of the trial, and if they lose they will have to pay a lot more than what they could have just settled for. And as the RIM/NTP case shows, they could still lose even when the patent office ends up rejecting the patents they were being sued for.
In addition to all of that, you have people and companies who are afraid to come to market because they know they can't afford the lawsuits or even to settle before trial. And who can't afford those lawsuits? It's not the large multinationals that your link seems to think are the evil ones in all of this. It's the little guys, the small business people. They are the ones who are afraid to innovate because they know they can't afford to face thousands of patents half of which (again, your stat) are bogus.
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Patents & Innovation
All net new jobs created in the US were created by start-ups since 1977 – See Kauffman Foundation Study. Startups are also the major creator of new revolutionary disruptive technologies. In order to obtain funding these startups require property rights in their inventions. Henry Nothhaft, a billionaire serial technology entrepreneur, has shown that each patent granted translates to about 3-5 jobs.
Unfortunately, you will probably get your wish for a weaker patent system, since Kappos and company are trying to weaken our patent system so that it favor large companies – see patent reform now called America Invents Act.
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dilution
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