SAN JOSE, Calif. – I’d like to offer a modest proposal to help cut through all the controversy around the value of patents. Simply put the documents on a scale, like grapes or ground beef, and pay the holder 50 cents per pound.
The proposal could save patent holders tens of millions of dollars in legal fees to say nothing of the time and effort in patent negotiations. Whole intellectual property departments could be streamlined, saving money for R&D.
I know this may seem like a radical proposal, but hear me out. It’s true, I am not an engineer, and I have never earned a single patent, but I have been to the sausage factory.
I covered calls for patent reform that spanned more than a decade. When a bill finally came no one was satisfied that they were significantly better off.
Later, I sat for weeks in the Apple vs. Samsung patent case. Two of the largest companies in the electronics industry brought some of the greatest litigators in intellectual property to bear on the questions in the case. They marshaled a small army of experts including some of the leading minds from academia, industry and standards groups.
I heard experts--some paid nearly a million dollars each--for their testimony make convincing cases one company infringed another company’s patent. The opposing side then brought equally pedigreed (and well paid) experts to testify exactly the opposite. At the end of the trail, the foreman (himself a veteran EE) said the jury threw out all the expert testimony because they could not trust people who were paid such high sums.
I left the case wondering how anyone can determine if a patent is valid or not, whether a product infringes a patent or not or whether a given patent is essential to a standard or not. There quite simply are no simple, clear tests a jury of anyone’s peers can apply to answer these questions decisively.
Nope, the US Constitution only talks about promoting "the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". In other words, it protects the Progress of Science and Arts, not the inventors! The copyright and patent protections are just a way of ensuring such Progress.
The important corollary is that if the system is failing to do that, the Constitution requires that it be changed.
This is the most Communistic reading of the US Constitution I have ever seen. Yeah, put 'em in doungons and let 'em invent for the Progress. It had been tried before somewhere, Comrade, it did not work out.