The Digital Media Manifesto



D. Marti


Failure of patent system




The patent system has failed digital media in two key ways: decreased patent quality and a creeping expansion in the scope of what is patentable.

1. Patent quality

Not only does USPTO not receive any tax money, since 1992 much of the money collected in fees by USPTO has not been available to it. From fiscal 1992 through fiscal 2001, more than $675 million has been diverted. Because of the economic damage cause by invalid patents, this is no way to save money. USPTO's ability to conduct meaningful examinations is already compromised. In 2000, former USPTO Director Q. Todd Dickinson warned of an imminent "reduction in patent quality" resulting from yet another inadequate budget.

The following quotations are taken from a letter to Howard Coble (R-NC) and Howard Berman (D-CA), Chairman and senior Democrat of the House Subcommittee on Courts and Intellectual Property dated January 9, 2000. Emphasis added.

To be a viable organization in today's high technology economy, the USPTO needs to conduct much more of its business electronically. We are well on the way to doing so, most notably, with our successful electronic trademark filing system and the availability of our patent and trademark databases via the Internet. Under the proposed mark, we would have to make reductions in this area of $37 million, wihch will force us to eliminate all new planned automation projects and severely curtail many of our already successful systems.

Specifically, we will be forced to significantly reduce or eliminate the planned electronic filing of patent examinations, on-line database searching (with a consequent reduction in patent quality), our award-winning patents and trademarks on the Internet program, our work-at home program, the electronic filing of assignments, and necessary upgrades or planned replacements to basic examiner computer equipment. We also would not be able to implement the replacement of our PTONet, which is the critical backbone of our information technology system, jeopardizing our entire operation....

Our workforce here at the USPTO is among the most highly skilled and sought after in the New Economy, as well as the Federal Government. Cuts in areas such as overtime and training would serverly weaken our ability to recruit and retain the high caliber staff, which is essential to our work.

Inadequate patent office budgets benefit only one group of people -- those who get invalid patents. Everyone else suffers. Fund patent offices so that they can afford to attract and retain highly skilled examiners, as well as maintain a world-class library of international patents, journals, catalogs, and other information.

2. Patentablity creep

US court decisions in the 1980s and 1990s have resulted in the patentabilty of mathematical algorithms and of business methods. Software and business methods patents are examples of "patentabilty creep" in action. Federal judges, legislating from the bench, are expanding the scope of patentable content to not only overwhelm USPTO, but also to do grievous economic harm. A similar process is under way in the European Union.

There is no natural right to a patent. In the US, patents are an economic tool given to Congress by the US Constitution, and exist, in the words of Article I Section 8, "to promote the progress of science and useful arts." Software and business methods patents do not promote the progress of anything. In a recent study, economists James Bessen and Eric Maskin of MIT found that

Through a sequence of court decisions, patent protection for computer programs was significantly strengthened. We will show that, far from unleashing a flurry of new innovative activity, these stronger property rights ushered in a period of stagnant, if not declining, R&D among those industries and firms that patented most.

Thanks to the AMA and other concerned medical professionals, the US has already won a victory in the fight against patentabilty creep. In response to patents on surgical techniques, Congress in 1996 redefin ed patent infringement to exclude surgery and other medical treatment. As Richard M. Stallman has suggested, a similar measure to prevent infringement claims against programmers and users of software for general-purpose computers could achieve the benefits of software patent reform without forcing Congress to define a "software patent."