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December 19, 2012
Kappos Thinks AIA Will Fix Patents
To which my only possible sub-headline would be "What is he
smoking?" Tim Lee's ars technica sub-head is much nicer
Look, the America Invests Act (AIA) is an interesting piece of legislation with some good ideas behind it. Like any bill that makes its way into law, those good ideas are sort of diluted and distorted from their original form in order to make the compromises necessary to get a deal done. Fine. Good. That's how these things work.
But in this case, it's not a matter of compromise so much as it is an uncompromising unwillingness to put his own house in order that's affecting Director Kappos. Early in December he gave a speech in which he touted certain provisions of the AIA, particularly what's called "post-grant review", as a solution to the current patent-litigation mess. In this review people who aren't involved in the original patent are allowed to challenge a patent once it's issued. This is similar to what I discussed as already happening in my previous patent-system post but it has the advantage that you don't have to go through a whole trial in order to make a challenge happen.
That's good, but it's still too late. And Lee is spot-on in his response to Kappos when he says that the speech "...ducks the central question in the software patent debate: do patents, in fact, provide a net incentive for innovation in the software industry?"
Indeed, and Kappos's focus on post-grant review is itself a tacit admission that the USPTO is giving out patents that it shouldn't. Obviously, if it issued better patents in the first place there would be no (or at least much less) need for post-grant review. If we're going to have any hope of hacking ourselves out of the current weeds we absolutely must push the solutions upstream to the application and review stages. How about that, Mr. Kappos?
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