Obama Taps IBM Open Source Advocate For USPTO

langelgjm writes "President Obama has announced his intent to nominate David Kappos, a VP and general counsel at IBM, to head the US Patent and Trademark Office. This move is particularly notable not only because of IBM's much friendlier attitudes towards open source compared with some of their rivals, but also because Kappos himself is open source-friendly: 'We are now the biggest supporters of the open source development project,' explains David. 'Admittedly this policy is not easily reconcilable with our traditional IP strategy, but we are convinced that it is the way to go for the future.' Not just a lawyer, Kappos earned an engineering degree before working in the legal field. Kappos has been described as 'critical of the American approach to patent policy.' Given his background, could this mean a new era for US patent policy?"

Comments

Some other points...

[langelgjm]

Really, my summary is hyped up a bit. I doubt that Kappos will usher in a new era on his own; so much of patent law depends on Congress and the courts anyway. However, given the views of his predecessor (Dudas is on record as saying that "we must also actively educate the world that it [our patent system] is fundamentally the best system"), Kappos is on record as saying that in the U.S., "Trivial patents are being granted. By contrast, the system is better in Europe."

I think Kappos' background is also notable. He's really the first director of the computer generation: got an engineering degree, began working at IBM as an engineer, and then went over to law as a patent lawyer. By contrast, previous directors have either not had technical backgrounds, or have jumped around in the IP fields (Q. Todd Dickinson began work at Baxter, a healthcare company). I think Kappos having been brought up in IBM will make him more open to (or at least less skeptical of) open source-type ideas than any of the other former directors, and his computer/engineering background will also make him more critical of our patent system, and not as focused on ratcheting protections up as far as they can go. Imagine, on the other hand, if the appointee had been someone from PhRMA.

It is not unusual that a patent lawyer would hold an engineering degree; in fact, to sit for the patent bar, one needs typically needs an engineering or science degree, and some patent lawyers have advanced degrees in their areas of specialty. However, I thought it worth mentioning given that the former director of the USPTO, Jon Dudas, did not have any engineering or science background, but rather a degree in finance.

Re:Some other points...

[sribe]

Really, my summary is hyped up a bit. I doubt that Kappos will usher in a new era on his own; so much of patent law depends on Congress and the courts anyway.

A lot of what we think of as the really bad stuff, was undertaken by the patent office on its own with neither authorization from Congress nor truly applicable court ruling, but at the direction of an ambitiously expansive director.

Re:Some other points...

[Daniel Dvorkin]

Kappos is on record as saying that in the U.S., "Trivial patents are being granted. By contrast, the system is better in Europe."

He's saying something in Europe is better than in the US? My God, what kind of monster is this guy? He must be a socialist atheist gay-marrying cheese-eating surrender monkey terrorist lover! The Senate should not only deny his confirmation, they should kick him out of the country!

America, love it or leave it! God's country! U-S-A! U-S-A!

Re:Some other points...

[Dachannien]

A lot of what we think of as the really bad stuff, was undertaken by the patent office on its own with neither authorization from Congress nor truly applicable court ruling, but at the direction of an ambitiously expansive director.

Hey, who woulda thunk that Triantyfyllos Tafas was a Slashdotter?

Re:Some other points...

[selven]

America, love it or leave it

If we're discussing de facto jurisdiction, the latter is currently pretty much impossible.

Re:Some other points...

[Bobb9000]

A lot of what we think of as the really bad stuff, was undertaken by the patent office on its own with neither authorization from Congress nor truly applicable court ruling, but at the direction of an ambitiously expansive director.

Hey, who woulda thunk that Triantyfyllos Tafas was a Slashdotter?

My kingdom for some mod points, for someone who keeps up with patent law. For those who don't, Tafas is suing the USPTO because they tried to implement some policies that would have made it harder to get patents. While many of the problems of the current patent system can be traced to earlier policies implemented unilaterally by the USPTO, the office has been swinging quite the other way currently, and while not all of it is traceable to Congress and the courts, they (except for the courts, recently) have only made things worse.

By Neruos

[Anonymous Coward]

The fact that IBM has applied for about every known patent over the past 9 years never came up either.

I'm sure he'll be great...

[RobVB]

Obama's decisions never hurt a fly.

Isn't that required?

[Ungrounded Lightning]

Not just a lawyer, Kappos earned an engineering degree before working in the legal field.

I thought an engineering degree, as well as passing the bar, was a requirement to practice patent law (at least in engineering-related branches if not in general).

So, given that he was a patent lawyer, that double degree is neither surprising nor unique.

Re:Isn't that required?

[John Hasler]

> I thought an engineering degree, as well as passing the bar, was a requirement to
> practice patent law

No. One must pass the USPTO's exam and be admitted before the bar in at least one state. If you are not admitted before the bar but do pass the exam you can be a patent agent.
 

Re:Isn't that required?

[Ungrounded Lightning]

I thought an engineering degree, as well as passing the bar, was a requirement to practice patent law (at least in engineering-related branches if not in general).

Ah, here we go. From the US section of the wikipedia article on patent attorneys:

Both Patent Attorneys and Patent Agents are generally required to have a technical degree (such as engineering, chemistry or physics) and must take and pass the Examination for Registration to Practice in Patent Cases Before the United States Patent and Trademark Office.

Re:Isn't that required?

[Gerocrack]

Patent prosecution (writing patents) requires you pass the US patent bar, which is different from a state bar. To sit for the patent bar, you must have an engineering/science degree. Patent litigation, however, only requires you be certified by the bar of the state in which you are practicing; Patent Bar and technical degrees are not required. You can also take the patent bar w/o going to law school, and become a patent agent. Still need the technical background, though.

Re:Isn't that required?

[John Hasler]

Also from the wikipedia article on patent attorneys: :

One can also meet the scientific and technical training requirement by qualifying under Category B[27] or Category C. Category B provides four distinct qualification options. Where each option sets a requisite number of semester hours in physics, biology, chemistry, computer science, and/or engineering. One can qualify under Category C through a showing that he or she has taken and passed the Fundamentals of Engineering (FE) examination.

Thus no degree is required.

Re:Isn't that required?

[geekoid]

You don't need to have a degree. See section C on the qualifications document.

"could this mean a new era for US patent policy?"

[John Hasler]

Maybe. The USPTO must operate within the constraints set by Congress and the courts. Software patents were forced on them by the First Circuit: they opposed them initially.

IBM is the Record-Setter

[Bob9113]

From the linked article:

IBM has a worldwide portfolio of 40,000 patents. About half are lodged in the USA and the remainder split between Europe and Asia (where, of course, China is increasingly featuring). So far this year, IBM has filed 3,000 patents and is on target, says David, to maintain its record for the past 14 years of consistently filing more patents than anyone else.

So, if the definition of "new era for patent policy" is "more software patents", then yes (though I fail to see how that is "new" except that it is pressing harder on the accelerator down this destructive road). Granted, IBM is opposed to business method patents, but that is no surprise since their ability to innovate in business models is legendarily lackluster.

Nothing to see here. Same old moneyed interests using their monopoly-built position to buy more government access so they can create more monopoly rent opportunities for themselves.

Change

[slimjim8094]

I sympathize for (but don't agree with) people who call out Obama's (admittedly many) poor decisions and shout "Is this the change you voted for? That was one hell of a marketing scheme"

Well I'm proud to say that, yes, this is the change I voted for. This is exactly the type of decision that makes me happy of my choice. Go Obama! I'm not thrilled about all of your decisions, but it's things like this that make me guardedly optimistic that the future of our country is in careful and intelligent

(Though I can't see at the moment how this will be spun as a negative, I'm sure it will be).

Re:Actually . . .

[artor3]

The actual truth doesn't matter to them.

Nor to the people who can't help but praise him every time he farts. Be at least half honest and admit that there are two sides to this zealotry.

Those "people" don't exist. They're strawmen created by people who are desperately afraid that the guy they voted against will turn out to be a good president.

During the election, the hardcore conservative nitwits were claiming that Obama's supporters thought he was the second coming. Did anyone actually believe that? No. But if you lie enough, people start to believe it. That's been the GOP's specialty for the past several years. I hope they get back to normal soon, but I suspect I have quite some time to wait.

Re:Tapped?

[GaryOlson]

Tapped is a mechanical term relating to the creation of screw threads in a [solid] material. In order to be properly tapped, material must be removed to create a cavity, the hole gets chamfered to provide a proper thread lead-in, and the threads created by forming or cutting.

So David Kappos has been properly drilled, edged, and rolled with precision.

Re:Tapped?

[fm6]

Tapped? What's with the Mainstream Media's latest buzzword?

Sigh. I guess anybody that reports actual news (as opposed to bloviating idiots) is "mainstream media." I've heard this use of "tap" for as long as I can remember. The OED says it goes back to the middle of the last century (that they can document):

1952 E. O'NEILL Moon for Misbegotten I. 55 He was tapped for an exclusive Senior Society at the Ivy university to which his father had given millions. 1972 J. MOSEDALE Football ii. 13 Sports Illustrated magazine tapped him..as its 'Sportsman of the Year'. 1977 Time 23 May 13/3 Britain's youthful Foreign Secretary David Owen announced last week that he had tapped Jay, at 40, to serve as Ambassador to Washington.

Spare Change?

[fm6]

Since you're the rare Obama critic who doesn't see Pure Evil in his every move (such as his choice of condiments!) perhaps you could share some of your list of O's "many mistakes". I think he's actually done surprisingly well.

But more to the point, I crave an intelligent argument with a right-winger whose rhetoric goes beyond infantile insults and weird conspiracy mongering. When the conservatives were in charge, their abuse of logic and rhetoric would drive me up the wall. But now that they're out of power, their arguments are just a depressing sign of intellectual sloth. I guess they've had it too easy for too long.

People, get it together! It's your job as the opposition to keep us liberals honest! And it's a job you're not doing! Come one! Start pulling your weight! Isn't Personal Responsibility one of those Bennettish Virtues you keep harping on?

I'm supposed to think this is a good thing?

[jbn-o]

I think Kappos having been brought up in IBM will make him more open to (or at least less skeptical of) open source-type ideas than any of the other former directors, and his computer/engineering background will also make him more critical of our patent system, and not as focused on ratcheting protections up as far as they can go.

I don't know what being "more open to open source-type ideas" means. Nor would I use the term "IP" as you did. Software patents hurt all developers except those at IBM because IBM holds the most patents. Holding the most patents means IBM can cross-license far more easily than any other patent holder. In fact, we know how valuable cross-licensing is to IBM because IBM has told us. IBM has told us cross-licensing outweighs the value of collecting patent license fees by an order of magnitude. IBM got ten times the value of using patents held by others than licensing its own patents. This means IBM alone can skirt the trouble the patent system causes everyone else. IBM can completely undo the alleged advantage the patent system is supposed to give smaller organizations trying to commercially launch their work. You really should read Richard Stallman's examination of the US patent system as it applies to software development for a fuller description of the details on how IBM's statement in 1990 reveals the harm done to all software developers under the USPTO's thumb.

The solution is to completely deny anyone software patents so software developers can go back to relying on trademark and copyright law which is sufficient to avoid defrauding consumers and enforcing licenses, respectively. But I doubt the world's largest patent holder is in favor of disempowerment, and now that they have a man running the USPTO I doubt we'll see that office seeking to make software algorithms unpatentable.

I think what we're seeing here is just another instance of how corporate-friendly President Obama is. The more I read self-identified "open source" adherents saying how good this move is, the more I think that the open source movement is too corporate-friendly as well. Mere affiliation with a movement that isn't fighting for software freedom isn't doing you any favors; raise your critical standards and keep on fighting for the end of software patents.

Re:"could this mean a new era for US patent policy

[Grond]

Software patents were forced on them by the First Circuit

I think you mean either the Federal Circuit (e.g., In re Alappat and State Street) or the Supreme Court, depending on how broadly one reads Benson, Flook, and Diehr.

Re:Tapped?

[ColdWetDog]

So David Kappos has been properly drilled, edged, and rolled with precision.

So you are saying we're screwed?

Which part is the cheese?

[slashbart]

As a European with a taste for good cheese, from Dutch Goudse or Leidse kaas, or pitjeskaas to French blue cheese or brie or goats cheese, I've always been confused with American Cheese:
First: it's not called cheese: its' called American Process Cheese Food (look on the Kraft bricks)
Second: which part are you supposed to eat? The thin crunchy transparent stuff that is around the square yellow substance, or the yellow plastic substance with no flavor or texture?

Re:Which part is the cheese?

[K. S. Kyosuke]

Goatse cheese? My God, I knew the French were weird.