Sheldon Richman has a nice piece in the Chicago Sun Times on the Blackberry case. I posted a short comment here.
2 Responses to “An Elegant Essay on the Blackberry Case”
Richard Relph
Thanks for the link, Tom. I generally agree that the current patent system is highly abused. The incentive for “patent holding firms” has become too great as a result of two effects.
First, as noted, the patent office grants patents way too easily. The “obvious to one skilled in the art” requirement is rarely used to deny a patent during the granting process, though it is very commonly used in trials seeking to invalidate patents.
Second, the previous condition has existed for such a long time that the system has adapted. Companies that produce products now generally engage in efforts designed solely to increase their portfolio of patents. Some companies do this solely as a defensive measure – if they get sued by another company, they want to have enough patents on hand that a counter-suit or patent cross-license makes sense as a settlement. This, of course, incentivized the creation of “patent holding companies” that – because they produce nothing – are immune to this defense.
A massive re-write of the patent laws is needed, though not a constitutional amendment. Review of applications by people “skilled in the art” is needed prior to granting. Intent to produce a product based on the invention should be required (though accomodation must be made for the inventor who wishes to sell ideas to producers – specialization is valuable ;-). A failure to enforce a patent within a reasonable time should be interpreted as abandonment of the patent rights. Patent suits could require both sides to submit “best offers” with “one skilled in the art” choosing one or the other – with treble damages to the holder if the infringer loses and litigations costs to the infringer if the holder loses.
The argument that genuinely useful, non-obvious ideas aren’t scarce and therefore don’t deserve property rights is, I think, wrong. But I’ll think about it a bit longer before presenting my arguments.
It’s nice to hear from someone who knows what he’s talking about! Thanks, Richard. I think that we’re agreed that the current system is substantially dysfunctional and not even serving the functions for which it was intended.
Thanks for the link, Tom. I generally agree that the current patent system is highly abused. The incentive for “patent holding firms” has become too great as a result of two effects.
First, as noted, the patent office grants patents way too easily. The “obvious to one skilled in the art” requirement is rarely used to deny a patent during the granting process, though it is very commonly used in trials seeking to invalidate patents.
Second, the previous condition has existed for such a long time that the system has adapted. Companies that produce products now generally engage in efforts designed solely to increase their portfolio of patents. Some companies do this solely as a defensive measure – if they get sued by another company, they want to have enough patents on hand that a counter-suit or patent cross-license makes sense as a settlement. This, of course, incentivized the creation of “patent holding companies” that – because they produce nothing – are immune to this defense.
A massive re-write of the patent laws is needed, though not a constitutional amendment. Review of applications by people “skilled in the art” is needed prior to granting. Intent to produce a product based on the invention should be required (though accomodation must be made for the inventor who wishes to sell ideas to producers – specialization is valuable ;-). A failure to enforce a patent within a reasonable time should be interpreted as abandonment of the patent rights. Patent suits could require both sides to submit “best offers” with “one skilled in the art” choosing one or the other – with treble damages to the holder if the infringer loses and litigations costs to the infringer if the holder loses.
The argument that genuinely useful, non-obvious ideas aren’t scarce and therefore don’t deserve property rights is, I think, wrong. But I’ll think about it a bit longer before presenting my arguments.
Richard
It’s nice to hear from someone who knows what he’s talking about! Thanks, Richard. I think that we’re agreed that the current system is substantially dysfunctional and not even serving the functions for which it was intended.