US Patent Boss Completely Clueless: Insists That Patent Fights Show The System 'Wires Us For Innovation'

from the oh-come-on dept

Last week, there was a fascinating full day conference on ways to fix the patent system. There was a lot to digest, and I've been working on a much longer post about it, which I may not finish until next week. Someone from the USPTO was in attendance, and at one point stated that director David Kappos fully "heard" and understood the problems that people were complaining about, and that he fully intended to fix the system. Apparently someone forgot to tell Kappos. In a talk today, he completely blasted "complainers" telling them to "give it a rest already." His argument is that the America Invents Act -- the completely toothless patent reform that passed last year after being stripped of almost everything useful -- was just implemented, so we should just sit around and twiddle our thumbs while hundreds of billions of dollars are wasted due to bogus patents and disputes.

Except to Kappos, all that dead weight loss is a sign that the system is working. Why? I have no idea.

Indeed, Kappos suggested that the volume of patent litigation in the smartphone industry was a sign that the patent system was working as intended. "The explosion of litigation we are seeing is a reflection of how the patent system wires us for innovation," Kappos said. "It's natural and reasonable that innovators would seek to protect their breakthroughs using the patent system."

Note the giant and very questionable assumptions in the middle of that one: that it's "innovators" seeking to "protect" "breakthroughs." I'd argue that none of the three things in quotes is accurate. Quite frequently it's lawyers who haven't actually innovated at all looking to shakedown actual innovators for broadly worded patents that never should have been granted, and which are being interpreted to cover things they don't really have anything to do with. That's not innovation. It's extortion... backed up by the US government. It's a travesty.

Even worse, Kappos is still relying on the absolutely ridiculous "study" that the USPTO put out earlier this year, despite the fact that its methodology has been widely debunked for including grocery store baggers as "IP innovators." Sorry. And, if you look at what their actual report shows, it suggests that patent-intensive businesses aren't doing so well. Somehow he ignores that. Of course, perhaps that's why his office rejected a promised interview with me earlier this year, and could only defend the patent claims by arguing the most bizarre correlation argument in the world, that because Steve Jobs was innovative and had patents, therefore, patents worked.

Rather than address any of the real and well documented concerns with the patent system, Kappos apparently just decided to spin a fairy tale. He insists, as he's done in the past, that stronger patents automatically create more incentives, even as the evidence suggests that's not even close to true.

More recent research has estimated that litigation by patent trolls costs the economy at least $29 billion per year, and that figure may be as high as $83 billion.

Rather than engage in this empirical debate, or even acknowledge its existence, Kappos acted as though it was self-evident that stronger patents always create a larger incentive for innovation.

"To those commenting on the smartphone patent war with categorical statements that blame the so-called broken system on bad software patents, what I say is: get the facts. The facts don't support your position."

With all due respect, Mr. Kappos, we do have the facts. And they support the position of software patent critics.

It's sad that Kappos sends his lackeys to Silicon Valley to claim that he's "listening" and then spews such pure crap. The system is broken and either Kappos is lying or clueless. Neither reflects well on him.

Filed Under: america invents act, david kappos, patent reform, uspto