Kappos focused on the post-grant review procedure established by the AIA. This procedure allows third parties to challenge the validity of a patent after it has been approved by the patent office. He noted that the courts have tightened the rules for patent eligibility, and said that the new procedures established by the AIA "gives us the opportunity to address patents that would not have issued under current law."

He noted that during a time of growing litigation in the smartphone industry, "innovation continues at an absolutely breakneck pace. In a system like ours in which innovation is happening faster than people can keep up, it cannot be said that the patent system is broken," he said.

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Thoughts?

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 I think the pre-grant process is broken.  They should stop trying to be experts in all fields and just judge filings on proprietariness.  I've written over 25 patents and the best one I have is being held up by a never-ending stream of examiners who are defending existing dogma in software security.   The cost to educate them and execute the patent is well beyond any individual to do, which counteracts the protections the patent office is suppose to provide.

My feeling at this point is to gut the whole office and streamline the granting process.  This may require legal reform on the backend, but it's far more beneficial in the long run. 

Wholeheartedly agree.

Current system is so broken that only those with deep pockets can win.

 Wait, Greg are you saying the system is broken or just the pre-grant process? 

What changes should be made? He's listened to criticism and kept with the course. Why is that? What discourse has he not heard, or heard and not taken heed?

 The current granting process is only making the lawyers rich and suppressing the granting of new patents.  In fact, Encryptanet/Paycloud revenues, hiring, and fundraising was specifically shelved because of the granting process which has been going on for 5 years now with constant babysitting and feeding of cash.  

I guess I should be clear: *software patents* are fundamentally broken.  Biotech and pharma patent granting and licensing should be looked to as guides.

It's time to swing the pendulum back the other way.  Anyone who wants to file a patent should be granted one with minimal review.   A couple thoughts as someone who has been the manager of a patent portfolio for a company that was licensed for millions and millions by big name companies:

1) It's extremely easy to get around 99% of all patents, 99.9% in software, so there's no sense "pre-litigating" the meaning of the claims by some broadly intelligent, but not deeply expertised examiner.  Just grant the things and let the market sort it out.

2) I think instead of clogging up the courts, companies would then only litigate the most important ones and we'd see instead many more patent portfolio cross-licensing deals for nominal or reasonable fees, similar to what pharma and biotech have now.

3) Patents wouldn't be solely owned by big comany patent factories and you might actually see more innovation and flow of ideas, thus also creating more value to the economy.

4) All patents should have a decision made about their granting in under 6 months.  The patent office should be more of a registry than a technical assessment agency.  Any patent not reviewed within those 6 months is automatically granted.  All granted patents must become public.  

5) There should be a whole new class of patents called defensive patents that are easier to grant and simply describe the exact invention, but have lesser legal standing for initiating legal actions. 

I can probably think of other complaints....

Greg, thank you for articulating this. The whole system seems very broken. 

Perhaps an article on TC, BI, PandoDaily or the like? Or even Dan Primack's Forbes Column? This is great discourse, and insightful. 

 new law is no good

No good because...?

 He's saying they were too generous with granting patents.  In particular, the patent office was too generous, so now they are using the 'obviousness' argument for even the most complex technical designs and procedures when they are nothing but.  They are in a period of clamping down to let the industry catch up through litigation.  I think this hurts the individual inventors the most.  

I think you're right. Is the only way to fix this for some software folks to become lawyers?

unlikely...have to factor in big software vs startup software too