USPTO Director Admits Patents Do Not Equal Innovation; So Why Is He Pushing For More Patents?

from the questions-to-ponder dept

Mon, Mar 14th 2011 4:06pm — Mike Masnick

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

11 Comments

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Capitalist Lion Tamer (profile), 14 Mar 2011 @ 4:48pm

So why is he pushing for more patents?
I'd have to say it's the fact that, despite his name being on the office door, the decision is being made by those who want to keep the system in place.

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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abc gum, 14 Mar 2011 @ 6:53pm

"Why Is He Pushing For More Patents?"

I'm guessing that's what he is being paid to do.
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penstock (profile), 14 Mar 2011 @ 7:31pm

Apples and Oranges?
Is there a discussion here? If increasing the quantity of new patent publications does not directly relate to innovation -- then these two topics must be separate issues -- 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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Anonymous Coward, 14 Mar 2011 @ 7:51pm

I wish that the original story had more of that "does not equal innovation" quote to put it in context. It really appears to have been taken from a much longer thought, that certainly would nuance the meaning.
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Anonymous Coward, 14 Mar 2011 @ 9:50pm

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...

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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Jose_X, 14 Mar 2011 @ 10:25pm

Hopeful but not convinced the USPTO means well
A cynic might say that now you have a scholar that would be working against the USPTO instead working narrowly against patent trolls who pose a threat to major patenting corporations like IBM (Kappos' prior employer).

Graham shows

patents = innovation

is missing an important term:

FIX: patents + products = innovation

Now major corporations can proceed unchecked.
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Felix Pleșoianu, 14 Mar 2011 @ 11:41pm

Well, duh! Should the patent system be trimmed back, let alone abolished, the head of the agency would suddenly be a much less powerful person. Why do you think politicians do politics in the first place?
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staff, 15 Mar 2011 @ 7:34am

saboteurs
"patents are not the same as innovation "

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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Dale B. Halling, 15 Mar 2011 @ 7:35am

Patents & Innovation
It would be nice if you did a preliminary check of your facts before you made broad pronouncements. In the 1970s when the US was also worried about falling behind technologically, the number of patents issued to US inventors declined. In the 2000-2010 decade, when the US is again worried about falling behind technologically, the number of patent issued to US inventors has declined. The industrial revolution began when modern patent systems (property rights for inventions) were created. A strong patent system does equal 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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cjstg, 15 Mar 2011 @ 10:44am

dilution
just thinking out loud here. earlier last week wasn't there an article about the possibility of eliminating business process patents. now this guy is talking about patents not really being innovation while at the same time lowering the bar for new patents. maybe this is all part of a dilution process. create a bunch of patents that mean nothing and then point at the process and say "it's all broken". add this to enough patent suits that result in invalid patents, and people start to see where the system is broken. crazy like a fox.
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Chosen Reject (profile), 15 Mar 2011 @ 10:52am

Re: saboteurs
I started to read that link and then I saw this:
Overall, based on court rulings over the last several years, roughly half of all litigated patents are upheld in court. That's pretty balanced and suggests there is no problem with patent quality.
No, when only half of all litigated patents are upheld, it indicates that there is a major problem.

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 it costs the patent holder about as much in a patent suit as it does the accused infringer.
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 there is a problem with the patent system, it is not that patents are issued too hastily, but rather that many are issued too slowly. ...[B]y the time an inventor gets their patent their technology is of no value.
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.
That is the problem everyone should be focused on � not this imaginary issue of patent quality trumpeted by large multinationals as a way to stifle innovation and further cement their market control.
If there were no patents, then the "little guy" could just as easily copy the large multinationals.
...[E]ach year there are less than 3,000 patent cases filed in our federal courts out of a total of more than 150,000 other civil cases. Plus at least 70% of patent cases are settled before trial. How then can it be said patent litigation has spiraled out of control?
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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