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Linux Journal: Toward the Anticommons; Patent Overkill Could Stifle Innovation

Jan 24, 2001, 21:40 (9 Talkback[s])
(Other stories by Bryan Pfaffenberger)

"What's going on? It's simply that the US Patent and Trademark Office (PTO), egged on by a patent-friendly US federal judiciary, is handing out too many broadly phrased software patents (for examples, visit http://www.bustpatents.com). Claiming that they have no reliable way to ascertain the existence of prior art (previous invention) in software, overworked PTO examiners are granting tens of thousands of software patents annually--and among them are patents granting monopoly rights to technologies clearly invented by others and in widespread, public use."

"What's the danger in this situation? Is it really so bad? Proponents of strong intellectual property protection argue that a flawed patent system is better for innovation (and, therefore, for global competitiveness and social welfare) than no system at all, but I'm not so sure. In this article, I'll highlight the mounting evidence--reliable, quantitative evidence backed by rigorous mathematical models--that the software patent avalanche poses a major threat to innovativeness (and therefore the competitiveness) of the US software industry. Other countries, notably those of the European Union, haven't yet followed the US lead--and they could find themselves holding a significant competitive advantage if the US system indeed proves dysfunctional."

"Proponents of strong intellectual property protection believe that any patent system, even one as flawed as the one that's dishing out tens of thousands of software patents annually in the US, is better than none at all. If you reply that the US software industry developed quite nicely without such protection, they'll respond that the industry would have done even better if strong patent protection had been available. Sure, there are grounds aplenty for arguing that the indiscriminate issuance of broadly phrased patents is a seriously bad thing; for example, Boston University law professor Maureen O'Rourke warns of the development of an anticommons, in which "rights are held by so many different patentees that the costs for anyone to accumulate all the required licenses to enable production [are] prohibitive" (O'Rourke 1999). In the absence of rigorously researched evidence, though, very few people will change their minds."

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