Gee, I dunno about that. These days, as reported by the survey conducted biennially by the American Intellectual Property Law Ass'n, it may cost millions of dollars to take a typical high-tech patent lawsuit through the numerous stages of a court battle.
As I say in another comment in this overall thread, if you act honorably and respect my right to the invention as defined by the claims of the patent, I won't have to sue to keep you off my property.
For further discussion, see ya on Twitter. @TechLaw_Elman
My view is that strong patents make strong economies.
For one writer's take on poet laureate Robert Frost's immortal words "good fences make good neighbors," see http://bit.ly/d60wyFor one writer's take on poet laureate Robert Frost's immortal words "good fences make good neighbors," see http://bit.ly/d60wy
If you know and respect the boundaries of my land (real property) you'll keep off the grass voluntarily and I'll have no need to sue you for trespassing. If, for your own convenience, you choose to cut across my lawn to shorten your path between your home and work, I'll ask you to desist. If you are honorable, you will do so. But if (heaven forbid) you're dishonorable, I may need to avail myself of the judicial system. Society encourages resolving our dispute that way rather than my using a shotgun to make you look like Fearless Fosdick. (See http://bit.ly/GmtrB)
To operate the "levers" of the legal system, I'd need to get a lawyer. But that expedient would be necessitated by your choice to disregard my rights and trample the grass.
It seems to me that Mike Masnick is misled by the 18th Century European approach to economics (The Wealth of Nations by Adam Smith) vhich views the economy statically as a vehicle to allocate among members of the population goods and services available at any one time. But when one looks at the economy as a dynamic system that brings into existence over time better and more efficient products and services, the fallacy is exposed. Indeed the Founding Fathers of our Country took a dynamic view of the innovation economy and wrote into the Constitution Article 1, sec. 8, clause 8. In the following century, Abraham Lincoln, himself a patentee, said: "The patent system . . . secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things." Second Lecture on Discoveries and Inventions, Jacksonville, Illinois, February 11, 1859.
Consider the originator of such a product. Why take the risk to invest in an innovation unless the originator can reasonably expect a reward that outweighs the risk?
Consider the subsequent adopter of the innovation. If he could reap the rewards of marketing the improved product in an established market without sharing the burden and risk of the originator, then his expected reward is greater than the originator's. In such an economy, everyone would be incentivized to play "after you Alphonse," and one would expect a lower rate of innovation than in an economy supported by a viable patent system.
For a more comprehensive demonstration of this proposition, accompanied by evidence a viable patent system encourages innovation, read The Invisible Edge by Blaxill & Eckardt (March 2009) http://bit.ly/HoLub
And follow me on Twitter @TechLaw_Elman
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