The US Constitution only states that Congress should promulgate laws to protect inventors. The question at hand is "Who is the inventor?". An even more important question that is not being argued today is "What constitutes an invention?" Patent law today slices that second question far too thin, treading deeply into skill-of-the-art territory and creating all kinds of conflicts, conflicts which stem from what are really differences in engineering choices or even differences in describing the same engineering choice.
The first-to-file rule totally destroys the concept of invention. The very meaning of the term implies a race. A race means more than one competitor which means more than one person has the same solution to the same problem. That is not a unique invention. It is skill of the art.
I submit that the present patent system interferes with economic development and unnecessarily elevates the cost of living for all members of our society. IP protection is but one of many factors that determine success in business. In the extreme opposite situation, if there were no patents at all, new inventions would still be brought to market and people would still make money from being creative. It would just be done in a different, probably more efficient, manner. Everyone would benefit were legally protected IP truly unique.
The concept of the patent is to protect the inventor so the he or she will benefit from teaching everyone else how to do something they themselves cannot figure out. Society in general and every individual in particular wins. Protecting solutions to problems that anyone could figure out without assistance if they were only asked distorts the economics for everyone.
I understand you oversimplifying this in a "per pound" sausage meat comparison, but this is actually already done behind closed doors. Patent portfolios are all about horse trading. I've got 1000, you've got 600, you owe me x (where x is lower than the y you would owe if you had none). It is near impossible to evaluate every one of the 600 on merit and decide if infringement exists or not. That is how it works today. "per pound" would simply encourage people to write even more verbose legal speak than already exists in a filed patent - lawyers love their verbosity! As for Apple vs Samsung, well the foreman's comments/insights might well have that case thrown to the curb. Time will tell. Personally I think for patent disputes, the biggest issue is the "peers" part. Most patents are written by VERY smart people, generally with higher degrees. These people are literally at the cutting edge of their field and playing their A-game doing it. The intellect bar is pretty high. What is obvious, what is prior art and what is genius can only really be judged by a jury of similar minded individuals working with this stuff every day (read that as nano-electronics engineers/programmers also with PhD's from academics and industry who know this stuff well). None of this is helped by the obfuscated language used by lawyers within the patent filings - even the experts who came up with the ideas have trouble following this language.
Well, well, such disrespect for the US Constitution.
In fact, the money spent in these court battles is like the money spent on election or defense. (I bet you think these are unnecessary too.) But when ideas can be freely copied from somewhere else, nobody will be so dumb as to pay good salaries to engineers.
Do you think, if you have a good idea, some big companied would just pay you for it, without the threat of a devastating law suit? Would you compete in todayís highly consolidated electronics market without a patent framework? Do you think a company like the early Qualcomm would have any chance without patent protection?
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