Former US Patent Office Director Freaked Out That Business Methods & Software Are Less Patentable Than Before

from the chill-out,-david dept

Bloomberg has an interesting article noting how the US Patent Office is (rightfully!) rejecting lots of software and business method patent applications these days, thanks to the Supreme Court’s excellent ruling in the Alice case.

Fewer than 5 percent of applications for business-method patents are getting approved by the patent office, according to data from law firm Kilpatrick Townsend & Stockton and LexisNexis PatentAdvisor. (A typical approval rate is 25 percent to 45 percent.) When asked how many business-method patents they?ve approved in the past year or two, patent examiners often say ?the answer is zero,? according to Kate Gaudry, a Kilpatrick Townsend patent lawyer. ?Some of them are saying, ?My hands are tied.??? The number of business-method patent applications has fallen in half since 2014, as patent owners seek different classifications or give up altogether.

Courts are doing similar work:

Courts have invalidated more than 370 software patents under the new standard, according to data compiled by law firm Fenwick & West. District and appellate courts have thrown out two of three patents brought before them since Alice Corp. v. CLS Bank.

Now, for those of us who were paying attention to what a mess things were before this is an undeniably good situation. Bad patent applications and bad patents are getting rejected. We don’t need broad patents on software and business methods. Let people build stuff and compete in the marketplace. This is good for innovation.

But, of course, if you’re former US Patent and Trademark Office boss David Kappos — who presided over a massive increase in patenting, which the Government Accountability Office recently noted was mainly due to basically no quality standards being used — this is a bad thing. Perhaps he takes it personally that the current patent situation really puts an exclamation point on the fact that he helped usher in hundreds of thousands of anti-innovation weapons that could be used to shake down actual innovators. So he has to lash out at this change where you can’t just willy nilly patent obvious software and business method ideas:

He says the invalidation of patents is ?out of control? and has ?definitely gone too far,? citing a case awaiting an appellate ruling in which a patent has been invalidated for software enabling video game developers to more easily manipulate the movements of characters? mouths to match dialogue. ?Important software innovations that are highly technical are being deemed unpatentable,? Kappos says. ?You can get software patents allowed in both China and Europe that aren?t allowable in the U.S. anymore.?

So? That’s actually a good thing for innovation. It means more people can build on and improve on that work and there can be more competition, which leads to more rapid innovation. Why is Kappos so against that? We’re seeing amazing new innovations happening all the time and it’s not because of patents. If Kappos got away from all the patent lawyers he spends his time with and spoke to actual engineers who are doing the innovating, he’d find they don’t care about patents. They’re excited about patents being rejected because it means they can focus on building cool and innovative stuff again.

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Comments on “Former US Patent Office Director Freaked Out That Business Methods & Software Are Less Patentable Than Before”

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Anonymous Coward says:

Evolution works just fine w/o exclusivity/patents

Even the slightest glance at the diversity of life on Earth shows that evolution works just fine.

Yet evolution doesn’t require exclusivity and/or patents to operate.

You’d think that someone in the “intellectual property” field would notice this contradiction.

Anonymous Coward says:

Amazing. His unspoken, but clearly conveyed, belief seems to be that if the kind of parasites he’s been enabling throughout his career don’t get their cut…the innovation doesn’t happen. If that rubber stamp doesn’t come down…nothing is created. Its like saying that if federal regulations on the size and shape of bushel baskets for harvesting cherries were invalidated, there would be no cherries.

He has internalized a belief in the vital importance of ‘regulations’ that really, really needs to be examined instead of accepted…how did he ever attain a prominent position with the Patent Office?? (oh, never mind)

That One Guy (profile) says:

Re: Re:

Didn’t you know, that’s exactly what happens!

Innovation doesn’t actually occur when someone comes up with a new idea(or a re-hash of an old one), develops it and puts it into practice, no the moment of innovation only occurs once a patent on the idea/process is approved. If the patent application is approved then in that very moment something amazing was created, a new idea takes form and can be used to enrich the lives of everyone(but mostly the patent owner or whoever they sell it to). On the other hand if the patent is rejected then poof, no innovation.

That’s why absolutely not one single thing was ever invented before the patent system was introduced, because no patents equals no innovation and invention.

Anonymous Coward says:


Call me stupid but “software” is a computer program, right?

“You can get software patents allowed in both China and Europe that aren’t allowable in the U.S. anymore.”

I can’t say anything about China but Europe patent law:
Article 52, paragraph 2:
The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers

Does that mean that David Kappos is a proven liar?

Seegras (profile) says:

Re: Software

Either he’s a liar, or the European Patent Office is illegally granting software patents.

It’s actually the latter, and illegally granting unenforceable patents (in the hopes actually, that the pressure will be on to change the legislation; and to make a good buck in between) is what we call “fraud”.

Sadly, there is nobody who has jurisdiction over the EPO, so this fraud has been going on for the last 20 years..

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