USPTO Director Kappos comes out swinging in defense of software patents

Perhaps emboldened by the re-election of President Obama, USPTO Director David Kappos gave a remarkable speech yesterday at the Center for American Progress defending software patents–and the patent system generally. Not mincing words he criticized those who lament that the patent system is “broken.” Implicit in his comments is the admonishment that it is easy to be an armchair critic when one does not have to actually try to build or perfect an innovation system.

“So to those commenting on the smart-phone patent wars with categorical statements that blame the “broken” system on bad software patents, I say—get the facts—they don’t support your position.”

Kappos and his team have done their homework on patent quality and how patents are faring in the examination process, reexaminations, and in the courts. They find that in fact a high percentage of issued patents are being upheld as valid, while most rejections by the PTO are being affirmed as well. He correctly notes that the smartphone patent wars are not so much a sign of a broken system, but rather a strong showing of how enormous and valuable is the market for the stunning innovations in smartphones. Innovation is coming at a blazing pace, thus how can the system be “broken”?

“So to those reporting and commenting on the smart-phone patent wars as if to suggest that the system is broken: let’s move beyond flippant rhetoric and instead engage in thoughtful discussion.”

Again, everyone’s a critic. Far too few of us–especially among law professors who are the fastest to criticize the system as broken–either offer any workable solutions or attempt to actually build something: whether that be a new innovation incentive system or the new innovations themselves. I’ve been involved on the innovation building side. It is incredibly hard and is usually messy. It is rarely if ever a perfect process. But you move ahead constructively and in good faith without critiquing every little issue (especially when sitting safely on the sidelines).

“So to the commentators declaring the system is “broken” I say: give it a rest already, and give the AIA a chance to work. Give it a chance to even get started. But we’re not done. Not nearly.”

Innovation is an ongoing, never-ending process. Our Constitution says “We the People of the United States, in Order to form a more Perfect Union . . .” It’s an odd locution because  “perfect” should be an end, something cannot be “more perfect,” right? But one interpretation of this is that it reflects the sentiment that we are never done as a people in innovating to adapt to new circumstances. We should strive to evolve and adapt constantly. What was perfect–or even good–for previous days is no longer so. This is what we do, and have excelled at as a diverse nation for more than 200 years: we roll up our sleeves and create the new solutions needed for each new day. We don’t sit on the sidelines and carp and needle about every little imperfection and perceived limit. We work around them. We imagine, invent, and, most importantly, we implement. The last is the hardest. And in doing so we often discover that the imagined solution doesn’t exactly work the way we thought it might. But we don’t give up there and bemoan the real world restrictions or challenges we found. We go “back to the drawing board” and revise the imagined solution taking into account the challenges we’ve found in implementation.

This is what Director Kappos and the USPTO are doing, under the mandate from Congress in the form of the AIA. Let’s both encourage them to continue doing so and offer to help in constructive ways.

Tip of the hat to my former student and star D.C. based patent attorney David Orange for the lead on this speech which he sent me yesterday.

About Sean O'Connor

Sean O’Connor is the Boeing International Professor at the University of Washington School of Law (Seattle). He is also Chair of the Center for Advanced Study and Research on Innovation Policy and Faculty Director of the Cannabis Law &B Policy Project. With a diverse background in music, technology, philosophy, history, business, and law, he specializes in legal issues and strategies for entrepreneurship and the commercialization of innovation in biotechnology, information technology, and new media/digital arts.
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