President Obama Announces Intent to Nominate David Kappos as Patent and Trademark Director [1]

Kappos is IBM’s main intellectual property counsel, and he has been a strong advocate for open-source. One of his tasks at the United States Patents and Trademarks Office (USPTO) would be to make this dinosaur speedier. Which means you might at last be able to get a patent while it’s still relevant to your business.

More importantly, David Kappos has been a key guy implementing IBM’s latest patent strategy which goes by the following rules [2]:

• Patent applicants are responsible for the quality and clarity of their patent applications.

• Patent applications should be available for public examination.

• Patent ownership should be transparent and easily discernable.

• Pure business methods without technical merit should not be patentable.

These rules are more restrictive than US patent laws, especially the way that the USPTO currently enforces them, and we can imagine that Kappos is being chosen for the Patent Office in part because of this slant.

This comes at a time when an entire set of dubious patent-related practices are being methodically dismantled by the Supreme Court and the USPTO. [3], [4], [5] and [6].

Not least of which being the questionable practice of granting patents on “business methods”. [8]

All in all I like the whole trend. As much as it is incredibly easy to “invent” new software, right now it is inversely difficult to protect one’s inventions because of the huge expenses. Throwing $10,000 at your attorney doesn’t buy you much protection; $100,000 is more like it for a coherent set of patents worth building a business on, and that’s without the potential cost of litigation when Amazon takes notice. Even without seeking to aggressively protect your ideas, if you’re not a big player with a big patent portfolio, a big legal team and a big bank account, you still don’t dare invent and implement anything too ambitious for fear of getting sued. In this environment, to a small software developer, too much success equals danger.

A shift away from patents and toward open-source (and trade-secrets) will give smaller, more nimble inventors much better chances. And you just watch the impact it will have. Big companies will be busy productizing ideas, inventions, frameworks and other pieces of code small and big generated as much by their own engineers as by the rest of the community. Inventors will be able to get a return on their “ideas” not by patenting and licensing them, but by making specialized, high value-add products based on their own open-sourced ideas, without fear of unwittingly infringing IBM’s (or Amazon’s or Google’s) patents. Of course we all know the trend has been here for years (Linux, Apache..) but look for the next generation of web “inventions”, call it Web 3.0, to exist in a world very different from Web 2.0. A much friendlier world. And as a result, look for more disruptive technologies coming out of unforeseen places. Just like HTML and HTTP came out of…. the CERN!!?

Well that’s the future I am hoping for anyway, because I have a lot riding on it.

The first few chapters cover intellectual property principles from the ground up: patents, copyrights, trade secrets, trademarks. For someone who knew some of these concepts better than others, it was a useful recap. Some typical software IP litigation cases are covered, enough to understand how the 4 types of IP can play out in the real world. Lastly the legal principles behind open-source licenses, and distinctions between the most popular of them, are presented. What I found lacking in the book is some form a strategic advice for protecting various types of software assets, for a software startup.