It's Time to Close Down the Extortion Racket "Market"
Comparing NPEs from previous centuries with today’s patent trolls is extremely disingenuous. True, the patent system was designed to allow patent assignment. But the intent behind the entire system, has and always will be “to promote the Progress of Science and useful Arts”. Today’s NPEs simply don’t do that, by any stretch of the imagination.
I have no doubt that NPEs from previous centuries, when actual working models were required to demonstrate a useful invention, actually promoted innovation. The sympathetic idea of an independent inventor with no means to commercialize his invention was very real back then. Not anymore. With the Internet and today’s incredibly connected and efficient startup-slash-venture-capital ecosystem, independent inventors have a plethora of outlets to market their inventions. Unfortunately for some, only inventions with real value are picked up by this system.
This relegates today’s NPEs to the role of picking up the scraps; the overly-broad, obvious and worthless patents nobody else wants because they offer nothing of value. Sadly, there is no shortage of such crap on the market thanks to the increasing glut in patent issuance.
So yes, thanks to today’s NPEs like Intellectual Ventures, “inventors” all over the world are motivated to patent anything and everything they can think of that might bear some resemblance to an actual useful invention. No need to worry, IV will add their useless patents to a pool of more useless patents and then go find someone to threaten with it.
So yes, the patent system is broken, to the extent it encourages and enables bad patents to clog up the system. I have no doubt that good quality patents are still issued on a regular basis. Those don’t need NPEs like they used to. But thanks to today’s NPEs and the blood-sucking innovation-killing patent-litigation-slash-bullshit-licensing market they have created for the least valuable patents out there, we can expect to see increasingly epic proportions of economic waste coming from our broken patent system.
It doesn’t have to be this way. A realignment of the patent system with its constitutional mandate “to promote the Progress of Science and useful Arts” is achievable with some tweaks to the patent assignment provisions. For example, making patents dissolve if they are not put into practice within 3-5 years is one option. Or taxing them heavily for each year they are not put into practice is another. Or both ideas put together. But somehow, someway, we need to kill the market for bad patents; a market made possible today by NPEs like Intellectual Ventures.
Wouldn't something like this violate most social networks' Terms Of Service? Not that the fed gives a shit, but it would be cool to read about some of these "personas" getting booted down the road when they're outed.
For a very clear and thorough discussion of fair use, please read this paper, "The Google Book Settlement and the
Fair Use Counterfactual" (http://www.nyls.edu/user_files/1/3/4/17/49/1080/55-1%20Final%20Sag%2011.17.10.pdf)
Sorry chumps, Mike is right. Here are a few nuggets of fair use wisdom for you to chew on:
The fair use doctrine plays a vital role in balancing “the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one
hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.”
The fair use doctrine is particularly important in situations where the costs of obtaining permission outweigh the benefits of the use.
And on those 4 factors commonly used by courts to decide on fair use:
The case law under the first factor is dominated by two considerations: whether the use is transformative (reMIX!) and whether the use is commercial.
Transformative uses are protected by the fair use doctrine because they lead to the creation of new works that do not substitute for the author’s original expression.
A claim of transformative use is most obvious when the work itself is literally transformed; however, in many cases
courts have held that other uses that do not literally change the work are nonetheless sufficiently different to constitute fair use.
In its 1994 decision, Campbell, the Supreme Court clearly
rejected the notion that commerciality by itself had any “hard presumptive significance.” Instead, the Court adopted a sliding scale for commercial use, arguing that because “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works . . . the more transformative the new work, the less will be the significance of other factors, like commercialism, that
may weigh against a finding of fair use.”