Fred D. Zemel
Partner
201-896-7065 fzemel@sh-law.comFirm Insights
Former Head of USPTO Offers Insight on “Software Patent Wars”
Author: Fred D. Zemel
Date: June 12, 2013
Key Contacts
Back
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.
- Practices: Intellectual Property
- Locations: New York City, Red Bank, NJ, Little Falls, NJ
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Related Posts
See all
Legal Issues Before Bringing on Investors
Bringing on outside investors can provide the capital and strategic support a business needs to grow. However, raising capital also introduces important legal, financial, and operational considerations. Before bringing on investors, businesses should address key legal issues to reduce risk, streamline investor due diligence, and position the company for long-term success. Early preparation signals that […]
Author: Dan Brecher
SECURE 2.0 RMD Planning Strategies
How the Updated Law Shapes Retirement and Estate Planning The SECURE 2.0 Act of 2022 materially reshapes the required minimum distribution (RMD) landscape, extending tax deferral opportunities while accelerating distribution requirements for many beneficiaries. For high-net-worth individuals and families, these changes are not merely technical. They require a reassessment of retirement income strategies, beneficiary planning, […]
Author: Marc J. Comer
Buying Commercial Property in New Jersey: Legal Guide for Small Businesses
Small businesses considering buying commercial property in New Jersey must evaluate a range of legal, financial, and operational factors. While ownership can offer long-term value and control, it also introduces significant risks if not properly structured. This guide outlines key considerations to help New Jersey business owners make informed decisions, minimize legal exposure, and successfully […]
Author: Robert L. Baker, Jr.
The SEC’s Latest Guidance on Applying Federal Securities Laws to Tokenized Securities
On January 28, 2026, staff of the U.S. Securities and Exchange Commission’s Divisions of Corporation Finance, Investment Management, and Trading and Markets issued a joint statement clarifying how existing federal securities laws apply to tokenized securities. The SEC’s “Statement on Tokenized Securities” does not establish new law, but it does provide greater clarity on the […]
Author: Dan Brecher
Common Legal Mistakes NYC and New Jersey Business Owners Make
Operating a business in the New Jersey and New York City metropolitan region offers incredible opportunities, but it also requires navigating a dense and highly regulated legal environment. From entity formation to regulatory compliance, seemingly minor legal oversights can expose business owners to significant risk. In our work with businesses throughout the region, our attorneys […]
Author: Dan Brecher
What Founders Can Learn From Start-up Suits
High-profile founder litigation is more than just a media spectacle. For startup founders, these cases underscore the legal and structural risks that can arise when rapid growth outpaces formal oversight. While launching a new company can be both an exciting and deeply rewarding endeavor, founders must be mindful that it also comes with significant risks. […]
Author: Dan Brecher
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.