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We need to fix software patents, says outgoing Kappos

In one of his final interviews before leaving office as USPTO Director, David Kappos identified “software and software patenting” as the biggest challenge for his successor.

Speaking to Managing IP before he leaves the USPTO this Friday, Kappos said: “There’s been a lot of controversy over the smartphone patent wars and section 101 on the software side and all of that is important, but there’s also an operational aspect to it.”

David Kappos
David Kappos

He added: “We already have several initiatives underway, including roundtables on the east and west coasts, but that’s going to need to continue. We’re not done until the software industry says we got it right.”

Looking back on his four-year term, Kappos declined to single out anything in particular he is proudest of: “There’s not any one thing, but the giant slate of things we have undertaken and the dizzying array of things we’ve done. When you line up all the projects next to one another, it’s pretty overwhelming.”

He also provided two bits of advice to his (as yet unnamed) successor: listen to your stakeholders and use their guidance and partner with your workforce, especially labour unions.

The full exclusive interview is only available on (subscription or free trial required).

Kappos’s comments come as the Court of Appeals for the Federal Circuit prepares to rehear en banc the controversial business method patents case CLS v Alice next week.

The Court has overturned its split decision in July last year to uphold Alice’s patent claims for a computerised trading system which minimises risk.

In 2010 the US Supreme Court said the Federal Circuit’s machine-or-transformation test should not be “the sole test” for patent eligibility.

Meanwhile, the USPTO Patent Trial and Appeal Board has decided its first case under the new Covered Business Method review procedure, SAP v Versata.

The implications of the CLS v Alice hearing and the SAP v Versata decision are discussed further in Federal Circuit and USPTO seek to clarify business method patents (subscription or free trial required).

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