The Digital Media Manifesto



Jordan Greenhall


Obstacle: the patent thicket




A variety of forces have converged in the last ten years to create a situation bordering on havoc in the patent world:

  1. The recognition of the relative disproportion between cost and potential benefit to filing patents has increased the total number of patent filings worldwide (especially in the U.S.) dramatically. This is particularly the case for software patents.
  2. Overburdened patent offices (particularly in the U.S.) have not the resources, time or expertise to effectively filter through all of the filings and ensure good claims.
  3. Rapidly converging technologies (and rules such as the doctrine of equivalence), and innovation moving at a pace unthought-of decades ago mean that the breadth and scope of patents in the analog world can cover huge swaths of the digital world - or interact with the digital world in ways that are both self-contradictory and negatively impact innovation.

By example, a patent related to on demand radio over analog broadcast can, if drafted correctly, cover exactly the same space as a patent related to instant messaging over the public internet. The consequences of the "patent thicket" are well understood: It is difficult if not impossible for anyone to clearly understand the true patent landscape of the business area in which they are operating. This means that it is hard to estimate the potential IP/Patent licenses that might be required to operate the business, it is difficult to understand the value of any given IP (what good is it to license your patent when there are three out there that also prevent my business) and it creates a race to the bottom where everyone starts filing more and more patents in order to have their own weapons with which to fight. Finally, as the sheer number of patents to consider increases, the simple transaction costs required to consider, license and/or fight each one of them becomes a significant drag on the efficiency of the market. Thus, the patent thicket presents a major challenge to “sustainable innovation” and, in many ways, undermines the principal goals of Patent.

In large part, international patent pools (e.g., MPEG) tried to help solve this problem by collecting all relevant IP into a pool and charging a single (rationalized fee). However, as the thickness of the thicket increases, these techniques are inadequate. They cannot keep up with the sheer volume or with the complexity of motivations / interests.

Potential Solutions: potential solutions can include the creation of a “prior art” repository that presents a foundation for development (not dissimilar from W3C or MPEG standards; the creation of a “creative commons” where IP holders can contribute their IP to an “open patent” pool; modification of or modulation of existing patent laws (e.g., prohibitions on “software” patents, or reduction of the lifetime of such patents); increasing the cost of patent filings to reduce flow; mandatory licensing schemes; etc.