The Digital Media Manifesto



L. Chiariglione


Comments on 030905greenhall01 and 030908marti01




The referenced contributions have proposed an extension to the current scope of 3.1.4 of the DMM.

Jordan observes:

  1. There is a dramatic increases in the total number of patent filings because of the relative disproportion between cost and potential benefit to filing patents;
  2. Patent offices 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 fast-moving innovation 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 self-contradictory.

And draws the following conclusions

  1. It is difficult if not impossible for anyone to clearly understand the true patent landscape of the business area in which one operates.
  2. It is hard to estimate the potential IP/Patent licenses that might be required to operate the business,
  3. 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);
  4. 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.

Potential solutions proposed are

  1. the creation of a “prior art” repository that presents a foundation for development (not dissimilar from W3C or MPEG standards;
  2. 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);
  3. increasing the cost of patent filings to reduce flow;
  4. mandatory licensing schemes.

Don adds more elements of proof to show that the USPTO is in the impossibility to cope with the growing number of patent filings. Then he makes arguments about the increase scope of patentability.

What I think is worth retaining from the arguments made is the fact that today too much garbage gets the status of patent and the damage of this situation needs no further proof. To cope with this situation there are two ways (one does not contradict the other)

  1. raising the threshold (i.e. making it more costly to file for a patent)
  2. increasing patent office staff.

The former is effective but discriminates small firms or individual inventors. More over it has the side effect of depriving industry of possibly important patents. The second is more full-proof but its costs are to be borne by society.

I am not sure what can be done with Jordan's third observation. Digital Media IS a point of convergence and there are no means to make simple a field that IS difficult.

The potential solutions are all worth considering, but I am not sure we should mention them in the DMM.

My proposal is to have "too much patent garbage" as an obstacle mentioned in the DMM and propose it for consideration in the  DMP.