Former Head of USPTO Offers Insight on “Software Patent Wars”

As patent infringement battles rage between technology giants like Apple, Google, Oracle and Samsung, the debate continues about the impact of the litigation on innovation. Many also question whether the suits reflect weaknesses in the U.S. patent system.

David Kappos, the former Director of the U.S. Patent and Trademark Office (USPTO), recently addressed the so-called “patent wars” impacting the software industry in an article published in the Stanford Technology Law Review. His perspective is interesting, given that he left his post at the USPTO only a few months ago.

In essence, Kappos argues that the smart phone patent wars are not about low quality software patents or an ineffective patent system. As he explains in the article, “The real issue is the historical tension between the necessary long-term incentives that form the basis for the patent system, versus the desire of consumers to have products and services today at the lowest prices possible.”

Kappos first dispels the notion that the USPTO’s process for evaluating software patents is broken. He points to a USPTO study that found that in over 80 percent of the smartphone lawsuits, the courts have construed the software patents at issue as valid, which he notes is “a far cry from the dire declarations.”

Kappos also argues that software patent applications are getting the same rigorous review by examiners as other technologies. He cites that allowances for software applications were correctly issued 96.8% of the time and for non-software applications 96.5% of the time. Similarly, final rejections for software applications were correctly issued 93.6% of the time and for non-software applications 93.5% of the time.

Finally, Kappos highlights that many problems with the patent system have already been fixed under the America Invents Act. He specifically mentions the new options available to challenge the validity of software patents, including post-grant review, inter partes review, and business method patents review.

“The USPTO itself, in partnership with its user community, has already implemented a series of steps to improve patent quality and is diligently working on the remaining challenges facing software patenting,” he writes.

If you have any questions about this article or would like to discuss the legal issues involved, please contact me, Fred Zemel, or the Scarinci Hollenbeck attorney with whom you work.