The referenced contributions have proposed an
extension to the current scope of
3.1.4 of the DMM.
- 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;
- Patent offices have not the resources, time
or expertise to effectively filter through all of the filings and ensure good
- Rapidly converging
technologies (and rules such as the doctrine of equivalence), and
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
- It is difficult if not impossible for anyone
to clearly understand the true patent landscape of
the business area in which one operates.
- 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);
- 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.
solutions proposed are
- the creation of a “prior art” repository
that presents a foundation for development (not dissimilar from W3C or MPEG
- 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;
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
- raising the
threshold (i.e. making it more costly to file for a patent)
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.
solutions are all worth considering, but I am not sure we should mention them in
is to have "too much patent garbage" as an obstacle mentioned in the DMM and
propose it for consideration in the DMP.