Investing in America's Future Through Innovation

  • May 16, 2013
  • Stan. Tech. L. Rev. 485
David J. Kappos

While the smart phone patent wars have generated debate about the patent system, the discussions raise a more fundamental question about the willingness of the United States to invest in our future. We as Americans need to make up our collective mind about whether we are satisfied with short-term gratification or whether we are willing to invest in the long-term. At their core, patents, and intellectual property in general, represent that investment. Drawing on recent patent quality metrics, the Article brings balance to the heated rhetoric, explaining why the best evidence available shows that the smart phone patent wars are not about low quality software patents or an ineffective patent system. Given this evidence, we Americans must continue to have faith in allowing our national innovation system to grow and develop as it has over 200+ years so that we and our children will have even more, and better, innovations to enjoy in the future.


Much could be said about this paper, which is based on a speech that Mr. Kappos gave at the Center for American Progress (CAP) on November 20, 2012, while he was still in office. The prepared speech appears on the USPTO website without a disclaimer:

I recently wrote a critique of the speech focusing on the study by Office of the Chief Economist and the dramatic growth in allowances of software patents under Kappos. It is posted on the Science Progress section of the CAP website:

Remarkably, both speech and paper are directed to the smartphone wars and claims that have been made about the quality of software patents. The patent assertion entities (PAEs, or trolls) that are currently driving the intense debate about software patents are ignored. While the speech calls for thoughtful discussion, the paper takes an absolute position that does not acknowledge the great differences among software patents, the damage they are causing to small innovators, or the arguments of the other side. While it

Again much could be said in response, and a thoughtful debate would be well worth having.

In the meantime, there is a sentence in the paper alone that begs to be corrected:

"It started with our Constitution, in which our Founding Fathers made patents an affirmative right the government is required to grant to anyone who meets the legal requirements."

The Constitution gives Congress the power to grant patents; it does not require patents. And the patent right is a negative right, not an affirmative right. It only allows the patentee to exclude others; it does not grant the right to practice the patent.

To Mr. Kahin:

As someone who has been through the process I will say that calling NPE's "Trolls" is like calling Hoteliers or NLTEs ("Not Iiving there entities) "Rent Trolls". Patents and hotels are property. Just because someone wants to use it for free does not make the owners "Rent Trolls" for charging a room rate.

In regards to your comments: " the damage they are causing to small innovators":

Since I was a "small innovator" as are others I know, I simply ask you, and others who consistently cite this vague "damage to small innovators", what damage and who specifically has been damaged? I would also ask you to define "small": $10,000? $1 Million? 100 Million in revenues? One Billion?

I seriously doubt that ANY small innovator not generating at least a couple of million dollars in PROFIT per year (if not more) has ever been sued by an NPE. This is for two reasons: 1. Lawsuits cost money and time. 2. "Small" means not worth the time alone.

However, I am sure we agree that patent "trolling" whereby letters are sent to users or small businesses demanding immediate payments of $X (usually less than $1,000) or else they will be sued, is a problem. Mainly it's likely mail fraud to begin with and they won't be suing anybody.

A simple law change that a patent owner cannot sue end users (who have not modified a product for resale) or demand any monies from end users for using a patented technology (software or hardware) should suffice to end such practices (VT is making laws regarding such that could be a national model).

At any rate, a few things are true about true "small innovators":

1. The large corporations that are lobbying for patent law changes are the same TOMPEs ("Theft of My Patent Entities") that refuse to respond to a small innovators request to discuss licensing a valid, hard won patent.
2. Small innovators will be robbed blind until, and unless they sue (corporate lawyers simply ignore small fry).
3. Patent Saviors (not the pejorative "Trolls") are a small innovators only hope as most are "small" and thus cannot afford the legal hassles the TOMPEs will hurl their way (thus sucking out the small innovators potential earnings).
4. If we do not protect small innovators and large, then we will cease filing patents and we will be stuck in a horse and buggy culture.

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