Re: Re: 8 suggestions to improve the American patent system
I didn't say it was going to be easy! The idea is that each of these points may or may not contribute a little bit of sanity to the patent system, and together they may mitigate current problems enough to make the current system workable.
Ad 4: you can license it out, but the shell company can't sue, so all you can license out is the permission to use the invention, not the monopoly, i.e. not the power to enforce it.
Ad 5: By "inventor" I meant whoever applied for the patent in the first place. If that is your company, then they get the monopoly, but they cannot sell it to anyone else. Indeed, they could sell an exclusive license to a troll and try to enforce their monopoly to protect the troll; but that could only happen if they were somehow subverted by the troll while still making products using the patent themselves (or they would run afoul of 4). This would be a lot more complicated than simply selling the patent and the power to enforce it, and nearly impossible in conjunction with 4.
Ad 7: what if panellists were screened case by case, and only the most egregious cases removed? The idea is that they decide together, and perhaps a qualified majority (2/3 in favour) should be required for each patent. If fewer patents are granted this way, then great.
8 suggestions to improve the American patent system
You have a point; I think big improvements could be made by changing the way litigation works.
1. Grant reimbursement of all legal and other costs made by a defendant if they (mostly) win the case, to be paid by plaintiff. This should work just like anti-SLAPP to remove the worst extortion effect: defendants won't lose millions of dollars any more even if they win, as it is now. Perhaps even add a fine for an unreasonable losing plaintiff.
2. Make *all* licensing compulsory (and fairly cheap), like FRAND. If you sue someone for patent infringement, you are required to get a quote for the licence first, from some committee. That way, if you are sued, you know what your options are, and licensing fees will be reasonable.
Fees should be scaled to both the patent holder and the defendant: a small plaintiff should never get more than, say, 50 % of its profits in fees, because otherwise they would profit too much from the other company's other activities; similarly, a small defending company should not be made to pay more than, say, 10 % of its profits on each infringing product. Fees should never be based on perceived losses of the patent holder.
3. Remove patent and trademark appeals from the Court of Appeals for the Federal Circuit and revert jurisdiction to the regular appellate courts. This mitigates regulatory capture; a court whose existence depends for a large part on a single kind of litigation, like patent lawsuits, tends to expand the scope of such litigation, thereby creating more jobs and a sense of importance for itself.
4. Forbid non-practising entities from starting patent lawsuits. This should hinder trolls a lot, and the reselling aspect of patents is that for which there is the least evidence that it benefits society.
5. Forbid the reselling of patents, see 4. Only the original "inventor" can sue. Like 4., there are ways to circumvent this, but it will be much harder.
6. Never allow juries to decide on patent cases. Laymen tend to be unpredictable and less balanced.
7. Have each new patent judged by a panel of experts in the field. That should mitigate the problem of the patent office's rubber-stamping. Of course they should be thoroughly screened for conflicts of interest.
8. Institute as an official criterion that patents are only granted for inventions that it takes a considerable amount of time, effort, or money to come up with. The idea is that the incentive provided by a patent is only needed for inventions that would otherwise not be worth the trouble. If all it takes is a moment of genius, no incentive is needed, because there is no cost: the inventor will come up with and exploit his stroke of genius anyway, even without a patent. If you know you need to carry out field tests for years on thousands of patients, then you may *need* the incentive provided by a (potential) patent to make it worth your while to proceed.
The panel of experts from 7. should be the judge of this. Rounded corners and bounce-back are obviously out of the game. License fees should also be based on the amount of effort that was involved in the invention.
But what if selling your next string at $10 is a bad idea for you? If your total profits are much higher at $5, then being deluded into selling it at $10 would be bad. Then this "devaluation" caused by cutting the price of your first string is actually a good thing for you. Devaluation then only means "lowering the price" of your products.
So you are never "able" to charge an arbitrary amount in that you will make the largest profit that way: you just do it, or you don't.
I'm not sure I find that summary "fair". The author does raise the valid point that "losers pays all" should be relevant not only for patent cases; but then nobody said it shouldn't. The issue is just that changing this just for patents is less intrusive and more likely to get a majority.
Why just pick patents?, the author asks: "In other words, the bill’s premise is that the protections and remedies under existing law – which for years have protected against fraud, abuse and bad faith – are now considered inadequate!" This is indeed just what the premise is, and it seems correct. Patent trolling is a big problem, where defendants are forced into settlements, because the costs of the lawsuit are too high (often millions).
So this law is a surgical instrument to remedy a particularly egregious canker.
One name stands out above all others: Karel de Gucht, European Commissioner for Trade. He seems to be pushing this Hollywood agenda in Europe. Luckily, Neelie Kroes is EU Commissioner for the Digital Agenda, who favours freedom and progress more.
All right, that may be what the EPP wants; however, I do not see how they could have attained their goal, since a parliamentary majority would have been required to postpone the vote. Note that the EPP didn't even attempt postponement after all, and the final ACTA vote will be held tomorrow.
What I don't understand is this: how can the EPP possibly secure postponement under this rule? It will still only be postponed if Parliament goes along with the EPP's potential motion, which it seems they will not, since they have already rejected postponing the vote before, when the EC asked for it earlier.
One comment on your Spotify comparison: if a hundred Itunes users contribute $ 60 each, that makes $ 6,000 total. If a hundred Spotify Premium users contribute $ 120 each, that makes $ 12,000. That means that artists + middle men (labels + stores?) as a collective get twice the amount of money, whichever way you look at it.
While the amount of money a single users contributes to a single artist may decrease—from $ 0,10 per Itunes song to $ 0,006 per Spotify play—many more of his peers will also contribute to this artist, because each user listens to many more artists than on Itunes, and plays each song far more often than the single time he buys a song on Itunes. Because the total volume of user-to-artist contributions goes up tremendously (could very well be x20 or much more), the lower amount per contribution can be compensated.
In fact, if you look at the $ 120 v. $ 60, it seems likely that the higher volume can more than compensate for the lower amount per contribution. If we assume that the percentage taken by middle men is equal, the money paid to artists should double. However, since artists get only 10 % of a $-0.99 Itunes song ("for major label artists, Apple collects 34 cents and the label keeps 55 cents"), perhaps artists get a bigger cut out of Spotify plays, although there, too, both the label and Spotify take significant shares. If that should be so, artists would get even more than double the Itunes income if they go through Spotify.
But it is a good start! Especially with all the world watching. And the Australian parliament, how are its members distributed between pro and contra? This committee could both be an indicator of parliamentary inclinations and influence them...
Oh, yes, according to poster "Open ACTA Mexico", the Mexican senate have the final say, so it seems likely that you will drop out.
The only caveat seems to be that they only ask/tell the president to "suspend participating in the negotiations" ("suspenda el proceso de las negociaciones de nuestro país"): so there is a theoretical chance that they will in the end, perhaps after new elections, resume negotiations.
However, the fact that they want all sorts of academics and other groups to analyse the treaty, and that they express strong concern about violations of civil rights, means that they will probably drop out. So yay, only two more drop-outs required...
What do you think? It is like saying, "Six fruits are needed. If three more fruits drop out besides this fruit basket and the apple (both of which have already dropped out), there won't be enough fruits left." In this case, the "basket" is conveniently subsumed under "Europe", because both Switzerland and the EU are already likely to drop out.