by Mike Masnick
Thu, May 1st 2014 9:06am
Fri, Mar 21st 2014 6:30pm
from the frenemies dept
It's not much of a secret that Apple sees itself as some kind of supreme overlord of apps for its iProducts. And that supreme overlord has some very puritanical views, it seems: no nudity, no literature, and no immoral comics (censorship claims based solely on Apple's pure-as-the-driven-snow morality indexer). Far be it from a silly little human like myself to question whether our overlords' iron-grip is good for the app ecosystem, but with all the questionable decisions that seemed to be made in the name of the app approval process, perhaps it's time for a more democratized solution, like letting customers decide whether they want something or not.
I say that because when we've reached the point that a World War 2 strategy game is initially rejected for app store inclusion for the sin of having Nazi enemies in the game, we've reached an absurdity level typically reserved for Monty Python sketches.
Hunted Cow Studios chief Andrew Mullholland just sent me screenshots of the status of Tank Battle: East Front 1942, the followup to the WWII wargame we just reviewed last week. Apple has rejected the game for having Germans and Russians in it. I’m not kidding.Apple...come on. They're Nazis. Somewhere between playing war as children, playing video games, watching movies, or pretending they're Indiana Jones, roughly every damned person on the planet has either pretend-killed a Nazi or watched a Nazi getting pretend-killed. That's what Nazis are for. You want a little mildly violent entertainment, but you need a fall-guy to shoot at so your friends and family won't think you're a jerk...boom, Nazis! This initial rejection was all the more silly since the game is set in a historical period when half the world was at war with, you guessed it, the Nazis!We found that your app contains content or features that include people from a specific race, culture, government, corporation, or other real entity as the enemies in the context of the game, which is not in compliance with the App Store Review Guidelines. Specifically, we noticed your app depicts real entity as the enemies.
Now, because not everyone at Apple is a lobotomized monkey that's been dipping into Steve Jobs' left-behind liquor cabinet, the decision to reject the game was quickly reversed.
Andrew Mulholland just wrote in to say that Apple re-reviewed the game and have reversed their decision without Hunted Cow Studios having to make any changes. Common sense prevails. Tank Battle: East Front 1942 will be on the App Store tonight at midnight.Nonsense. In what world is it common sense prevailing for this to have ever happened to begin with? The whole censorious process is an amalgam of frustrated confusion, created only because Apple wants to play parent rather than letting their child of an app store go free and grow up. We're talking about an entire situation that never need have happened, and we're calling it a win for common sense?
by Mike Masnick
Tue, Apr 9th 2013 8:24am
from the shockingly-under-shocking dept
Around the time of the Jaffe and Lerner book, the USPTO seemed to actually take much of the criticism to heart. One big part of Jaffe and Lerner's criticism was the simple fact that patent examiners had significant incentives to approve patents, and almost none to reject patents. That is, the metrics by which they were measured included the rate of how many patent applications they processed. But, since there is no such thing as a truly final rejection of a patent, people would just keep asking the USPTO to look at their application again. Each time an examiner had to do this, their "rate" would decline, since they'd be spending even more time on the same old patent application. But approving a patent got it off your plate and let the court system sort out any mess. However, after the book was published, the USPTO actually seemed to pay attention and changed its internal incentives a bit to push for high quality approvals. Not surprisingly, this meant that the approval rate dropped. But, since there was more demand for bogus patents to sue over, more people appealed the rejections and the backlog grew.
Patent system lovers started whining about the "backlog," but what they were really pissed off about was the fact that their bogus patents weren't getting approved. Unfortunately, their message resonated with the new regime of the Obama administration, mainly Commerce Dept. boss, Gary Locke, and head of the USPTO, David Kappos. Back in 2010, we noted that the USPTO had shifted back to approving "pretty much anything" and had clearly decreased their quality standards in an effort to rush through the backlog. Not surprisingly, in stating this, we were attacked mercilessly by patent system supporters, who insisted that we were crazy, and the truth was that David Kappos had found some magic elixir that made all USPTO agents super efficient (or something like that -- their actual explanations were not much more coherent). No matter what, they insisted that it was entirely possible to massively ramp up the number of approvals, decrease the backlog and not decrease patent quality.
Needless to say, we've been skeptical that this was possible.
And now the data is in, suggesting we were absolutely right all along. A new study done by Chris Cotropia and Cecil Quillen of the University of Richmond and independent researcher Ogden Webster used information obtained via FOIA requests to delve into what was really going on in the patent office (link to a great summary of the research by Tim Lee). The key issue, is (once again) the fact that patents are never truly rejected in full, and the people applying for patents just keep on trying again and again until someone in the USPTO approves it. However, the USPTO, to hide some of this, counts some of those "rejections" that eventually get approved as "rejections" to artificially deflate the actual "approval rate" of patent applications.
When the researchers corrected for all of this, they found that the actual patent approval rate in 2012 was almost 90% of all patents eventually get approved. 90%! That's about where it was in 2004 and 2005 (as discussed above), though in 2001 it actually came close to 100%! However, as noted above, by the second half of 00's corrections had been put in place and the approval rate had declined to under 70% in 2009 -- meaning that the USPTO was actually rejecting bad patents. But over the past three years, we've shot right back up. And it's clear that if the approval rate is much higher, the USPTO is approving many, many more bad patents.
In fact, it's likely that the story is even worse than before. Back in 2004 and 2005 when the approval rates were similar, it was really before the public was aware of just how bad the patent troll problem was, so you had many fewer people trying to get their own bad patents to troll over. In the past five years or so that has changed quite a bit. So the number of applications has shot up massively as well. In 2004 there were 382,139 applications. By 2011 that had shot up by 50% to 576,763.
I don't think anyone thinks that we suddenly became 50% more inventive between 2004 and 2011. No, the truth is that people were suddenly flooding the USPTO with highly questionable patent applications on broad and vague concepts, hoping to get a lottery ticket to shake down actual innovators. And, the USPTO under David Kappos complied, granting nearly all of them. Incredible.
When Thomas Jefferson put together the first patent system -- after being quite skeptical that patents could actually be a good thing -- he was quite careful to note that patents should only be granted in the rarest of circumstances, since such a monopoly could do a lot more harm than good. And yet, today, we encourage tons of people to send in any old bogus idea, and the USPTO has turned into little more than a rubber stamp of approval, allowing patent holders to shake down tons of people and companies, knowing that many will pay up rather than fight, and then leaving the few cases where someone fights back to be handled by the courts (who seem ignorant of the game being played).
The end result is a true disaster for actual innovation and the economy. We should all be able to agree that bad patents are not a good thing. And the USPTO is, undoubtedly, approving tons of awful patents when its true approval rate is hovering around 90%.
by Mike Masnick
Fri, Aug 20th 2010 7:49am
from the you-get-a-patent!-you-get-a-patent!-you-get-a-patent! dept
Combine that with some ridiculously bad court rulings, that made things (software, business methods) that people previously considered unpatentable "fair game," along with some insanely large rewards in patent infringement lawsuits, and you had a recipe for disaster. Multiple studies showed that the cost of legal fights over patents greatly outweighed the actual value of those patents. And it was becoming a dangerous snowball: the more bad patents approved, the more bad patent lawsuits, the more bad patents filed, etc. What was interesting was that around 2004, as the debate on this started getting so much attention, the USPTO realized it had a problem and started adjusting things so that incentives were a bit more aligned. And, lo and behold, a lot more patents started getting rejected, and the approval rate went down. Many patent system supporters chided those of us who complained about the incentive structure by saying "see? everything's fine now, since the patent office knows to reject bad patents."
Not so fast.
Last year, the new bosses at the patent office decided that the number one problem was "backlog." No doubt about it, there is a huge backlog and the time it takes to get a patent is very, very long. But rather than realize that the way to decrease the backlog is to reject all bad patents (thus making it less lucrative to file bad patent applications), it appears to have gone back to the old system: implicitly setting up the system so that "when in doubt, approve," is the norm -- just to get through the backlog.
The numbers don't lie, and the always excellent PatentlyO blog has the numbers and the graphs to show that we haven't just increased the rate of patent approvals, we've shot way up, beyond anything seen previously -- making it look like the "correction" from the past few years was just an anomaly. Not only that, but the rate of patent approvals on a monthly basis seems to be increasing, which doesn't bode well for the future either:
by Mike Masnick
Mon, May 10th 2010 12:38pm
from the this-is-not-a-good-thing dept
But, the article does mention, correctly, that the USPTO has been on a mission to decrease the amount of time it takes to review a patent. Now, the USPTO has been saying this for quite some time, and usually it's followed by talk of plans to hire more patent examiners. Of course, that's the wrong way to go about things. That's because the patent system doesn't scale, while the rate of innovation actually is scaling. The real way to decrease the time it takes to review a patent is to stop approving bogus patents. Seriously.
Unfortunately, it looks like the new USPTO, under David Kappos, may be going in the opposite direction.
In the late 90s into the early 2000s, the rate of patent approvals was quite high, leading to more patents being filed and more questionable lawsuits. After Lerner and Jaffe published their book Innovation and its Discontents, which highlighted the massive problems of the patent system -- including that examiners had more incentives to approve patents than deny them, the USPTO finally began to shift a little, and it actually began to get more difficult for patent approvals. Add to that a series of miraculously smart Supreme Court rulings on patent issues (with KSR's decision redefining how "obviousness" is measured being a small, but useful, step in the right direction), suddenly patent approval ratings dropped -- dropping from around 70% to around 50% in just a few years.
However, is all that being reversed? Patently-O recently pointed out that the USPTO appears to be approving patents at a much higher rate again, and there's lots of speculation as to why. Many assume that, as was noted in the original link above, Kappos and his boss, Commerce Secretary Gary Locke, are focused on reducing backlog. And so the incentives and pressure within the USPTO is to just approve patents to get them out of the way. If true, this is incredibly short-sighted and will backfire. The end result is that more bad patents get approved, and when bad patents get approved it increases bad lawsuits, followed by bad rulings for huge sums of money... leading more people to file for more bad patents hoping to win the same kind of jackpot.
There is, also, the more cynical argument, which is that since the USPTO is funded by fees, and as it is always looking to increase its budget (what organization doesn't?), it approves more patents to get more applications in, knowing that it can get more money that way. I'd like to hope this isn't the case, but either way, the pace of approvals is troubling.