The Ars Technica piece is very slanted, pulling quotes our of context. Here's the full text of the speech itself: http://www.uspto.gov/news/speeches/2012/kappos_CAP.jsp

For instance, compare these quotes, which give a very different perspective:

"But it is equally important that patent protection be properly tailored in scope, so that programmers can write code and engineers can design devices without fear of unfounded accusations of infringement. And we know that inconsistency in software patent issuance causes uncertainty in the marketplace and can cause threats of litigation that in turn can stifle innovation and deter new market entrants."

"Software experts have long observed that programming is incremental in nature, with modest improvements not worthy of patent protection. KSR gave us the ability to recognize this valid observation and incorporate it in our examination process."

"Should we just accept the problems, given the importance of the innovation and the illogic of discriminating against great technology that happens to be implemented in software? Of course not. The right point of inquiry is quality. By getting that right, we grant patents only for great algorithmic ideas worthy of protection, and not for everything else. This administration and its innovation agency understand that low-quality patents do no good for anyone. Low quality patents lead to disputes, uncertainty, and lost opportunity. Quality is central to our mission. All of this especially for software."

"One such initiative has already begun crowdsourcing searches for software prior art. It's called Ask Patents and is an online network hosted by Stack Exchange, where software experts engage in robust discussions of possible prior art for given applications, then submit the best prior art along with helpful commentary."

"You know, the history of software patents is not a perfect one, although things are improving. Some of the most troublesome patents have expired; others can be challenged with new post-grant proceedings; and newer patents are quantifiably clearer, and aligned with current legal standards."

"For those who feel more needs to be done, we encourage you to keep reaching out to us at the USPTO, as well as to other actors who also have an important role to play. The USPTO administers the laws, while Congress and the courts write the laws and interpret them, respectively. Working together, we can find the right balance for software patents. We can find a balance that ensures market certainty, encourages investment and research and product development, and guarantees that patents issued going forward are appropriately tailored."

All IP is not created equal. Here they are simply talking about trademarking by regions. Why? Because of vanilla. Madagascar vanilla was recognized as the best in the world. But Madagascar farmers got like 10 cents per pod, while the pods sell in NY for 50 dollars a pod (made up numbers, but you get the point). So the farmers create a geographical indicator (GI) for Madagascar vanilla, certify their product, and now make 25 dollars per pod.

Coffee is just following this model, so you can market Zimbabwe coffee and Ghana coffee and wherever else and the farmers get to keep a greater share of the profits. Honestly I don't see how this is anything but good - poor farmers keep more of the market value of their product.

When you hear the word IP, don't foam at the mouth picturing Simon Legree twirling his mustache. Stop, think, and listen. IP is just a tool, it can be used for good or ill.

And of course I don't need to address the "if it wasn't a good idea, we wouldn't be succeeding", around here, do I? So damned fallacious.

Yes, that argument is fallacious. However what he should have said is "If software patents are such a terrible drain, why do we still have the most valuable, innovative software industry in the world?". Proof by example can't show you have the best system, but it can show you have a functioning system. And that's a much harder question to answer.

Patent-intensive industries have the lowest number of self-employed workers, at 2.2% (vs 16% for copyright-intensive industries). This indicates to me that patent-intensive industries do not support capital-poor startups very well.

Does not compute. Patent intensive industries are technologically complex fields like biotech, semiconductors, etc. Such sophisticated endeavors require teams of people working together. Progress is too difficult for one person to go it alone. Even a healthy startup ecosystem will have many more employees than entrepreneurs at a given moment - how many startups survive past the first year? Past five?

Compare to copyright industries where you have many freelance authors, graphic designers, musicians, etc. Its no wonder the percentage is much higher.

tl;dr - Nothing to see here, move along.

What the IPO is basically saying is they don't give a shit if the developing world gets clean technology or not.

No they're really not. What they're saying is they don't want to be forced to give away their technology. They're perfectly willing to help on mutually beneficial terms - they just don't want anyone putting a gun to their head and forcing them to. Can't really blame them there.

I know several people at IPO, and more at the companies they represent. They aren't evil industrialists, swirling brandy in their mansions while snickering at the unwashed masses. They know climate change is a global problem and want to help. They'll forego profits and even donate resources in most developing nations to do so. But not if it means their tech is copied by hundreds of Chinese knock-offs eating into their first-world profits. Would you give a homeless man a gun for protection if he used it to break into your house and steal your stuff?

For example, GE is one of the biggest owners of green tech / climate change IP (patents). And they're also investing heavily in developing countries like Brazil and India. They know they need to get involved there, both to address the problem globally and because if they don't their competitors will.

They're not worried about IP rights in those places. With few exceptions, they don't even have IP rights in most developing countries in South America, Africa, SE Asia. They're worried about their technology (a combination of IP rights, trade secrets, technical know-how) being forcibly handed to low-bid manufacturers to churn out limitless cheap copies for developing nations at cost, some of which ultimately find their way back to the U.S., Europe, Japan, etc to compete against their own products. It's a basic free-rider problem - the knock-off manufacturers don't have to recoup any of the development cost. IP rights were created precisely to avoid this very situation.

I don't work for IPO or GE, or even in the industry. I just understand where they're coming from. This issue is much more complicated than it appears on Slashdot.

-1 factually incorrect. The one year grace period to file is not going away. What does go away is the one year grace period over someone else's prior art. But why should that exist in the first place? You still have a year to file over your own prior "art" (use, sale, etc).

In practice, few use the grace period anyway because you lose all rights in foreign countries (which mostly don't have grace periods). So anyone even thinking about foreign markets files before any public use.

IAAPA (patent attorney)

intellectual property law is philosophically incoherent. it is your moral duty to ignore it

Your sig is retarded. Laws have nothing to do with philosophical coherence. Laws are legislative compromises between competing interests. They are often^H damn near always messy horse trades. If you only follow the "philosphically coherent"[1] ones you're left with nothing but the ten commandments (even some of those are suspect).

Besides which, IP law is well grounded in economic theory - much more so than other areas of the law. You may disagree with the precepts, but "philosophical coherence" is there in spades. There are always a few warts around the edges as the law catches up with changing technology, but the underpinnings are well considered.

[1] whatever your limited parochial viewpoint defines that to mean

That's just terrible. Worst idea I've ever heard in my life. You think the patent office is bad, take a look at patent juries sometime. At least examiners understand the technology. Juries vote for a plaintiff just because they like the color of his lawyer's ties. Seriously, it happens. Complete disaster.

Worst. Idea. Ever.

nothing worth sending perfectly good boats over the ends of the earth for, right?

Are you purposely being obtuse? Good god man, you can't seriously compare the age of exploration with space travel. The Spanish crown knew exactly what they wanted - spices from China and India. They knew you could get there sailing west. The only thing they didn't know was how far it was. They got lucky when an untapped continent (or two) just happened to be in the way. But even before that fortunate accident, they had clearly defined, achievable goals from the outset.

What possible reason do we have to muck about in space? It's cold, it's dark, it's inhospitable, and it takes ridiculous amounts of energy to send the tiniest mass there. More importantly, there's nothing useful in space that we can't get cheaper and better here on Earth. Sure, zero g has niche applications, and the metals in an asteroid would be nice, but there's just no economic benefit to those now.

Face it, space is dead. Leave it for the robots.

On patenting software I like Donald Knuth's view, that software is math and it makes no sense to patent math.

Software is "just math" in exactly the same way math is "just numbers". Which is not at all. Software is a complex set of instructions that performs electronic work. Just like a physical machine is a complex set of parts that performs mechanical work. Only an average software program is orders of magnitude more complex (more moving parts, if you will) than the most complicated physical machine.

You can describe a catapult using pretty simple mathematics, that doesn't make it trivial to build one. Show me a mathematician at a computer terminal and I'll show you abstruse spaghetti code. You could let a million mathematicians hammer out code for a million years and not come up with anything resembling facebook. Programming is about choosing and assembling innumerable building blocks in precise ways to accomplish useful tasks. It has fuck-all to do with math except in a limited theoretical sense (algorithmic complexity and all that).

Which is not to say today's software patents aren't overbroad - they are. But to categorically exclude software patents as different from mechanical endeavors is to fundamentally misunderstand what software is.

I am a computer scientist and I am a patent lawyer.

Obviously it's the Mythbusters! Not only are they scientists AND engineers, but they're entertaining and appeal to a wide audience. What third grader doesn't like robots and explosions??

No one else mentioned even comes close. Sagan? Bill Nye? Some random astronomer? Please. They have absolutely zero crossover appeal with the general population (much less third graders) and will result in blank stares. May as well use Henry Kissinger (yeah not a science guy, but just about as boring as you can get).

Preferred embodiment and disclosure are separate requirements. The patent must disclose enough for one skilled in the art to make it without undue experimentation. So you don't need to spell out every detail, just enough that a skilled practitioner can recreate it without wasting a ton of time figuring out how it works. Source code level is way overkill for this. E.g. I can just say "sort the list of names" and any decent programmer knows how to implement a quicksort on a list of strings.

Preferred embodiment is much weaker. It just requires that if you know of multiple ways to do something and one is clearly preferable, you must disclose that. E.g. if heapsort performs much better in your invention than quicksort, you must disclose that. But you only have to disclose the difference if you know about it when submitting the application. Again, source code level is generally overkill.

I agree most software patents are too vague. But there's a lot of room between hand-wavy vagueness and every-last-detail-in-source code for a reasonably accurate description.

Protection is only given to what the claims describe, not the specification. And claims are required by statute to be a single sentence written in English. They should be a lot tighter than they are now, but the opposite extreme of source-code level descriptions is unnecessarily restrictive.

There's room to work this stuff out. And now we're talking how software patents should look rather than should they exist.

I agree with just about everything you said. The patent system would be a lot better with those types of reforms. But nothing about those problems is unique to software. You're just more aware of it.

IOW software patents aren't the problem. Bad patents are the problem.

There are no legit software patents,

That's easy to say in the abstract. What about Google's PageRank patent? Search was a hard problem for many years. Altavista, etc were mediocre. Google came up with a new approach that was leaps and bounds better. In other words the very definition of a useful new invention. So you are left with two possible arguments why it should not be patentable. Either (1) Google's innovation was obvious such that anyone in the field would have known about it or (2) software inventions as a whole are undeserving of patents.

(1) - If you say it was obvious, then that means some other software creations are not obvious. Whatever those non-obvious software things are would pass test (1). To deny those things a patent you must invoke (2).

(2) - Why doesn't any software deserve a patent? Is creating a great, new, non-obvious piece of software somehow less work than a mechanical invention? Doesn't it require just as much genius, study, insight, and effort to produce a new search system as a new fishing hook or screw design? Software has the potential to be vastly more complicated than any other type of machine. An airplane has tens or perhaps hundreds of thousands of moving parts which must be synchronized. Large program can easily have millions of lines of code performing tens of millions of operations that potentially interact. To say that software is per se not worthy of patenting draws artificial and illogical distinctions between the tasks involved in software and mechanical arts.

Software is NOT purely mathematics, any more than a nuclear bomb is purely quantum mechanics. Functional software has to account for a plethora of real world conditions. How much processing power is available? Storage space? How quickly do we need a result? Are quick partial results better then slow complete results? Does our input data change, and if so how frequently? How do users interact with the system? These and numerous other considerations have to be considered even at the algorithmic level. Just because it all runs in binary boolean logic somewhere doesn't make it all mathematics. The system encodes many other considerations that don't show up at that level. For the same reasons, software can't be dismissed as purely "abstract ideas" or "mental steps". Theoretically you can simulate a game of Doom with bit logic in your head. However the results aren't remotely comparable to playing the game in real-time on a computer.

Now we can quibble over exactly where to draw the lines to get a software patent: how inventive it must be, how narrow the claim coverage is, how much protection it should afford, what the public domain already contains. Those are all legitimate questions. But to dismiss all software out of hand as being inherently unpatentable is nothing but illogical prejudice.

and quite a bit of planet sees it that way.

Can't argue with that. Whether that's desirable is left as an exercise for the reader.

The deeper analysis is: the court decided nothing. They gave no new tests or insights to determine what is and isn't patentable. They simply said the old machine-or-transformation test is pretty good but not exclusive, and that abstract ideas are still not patentable. All of which we knew before Bilski hit the Fed Circuit.