Right, so the players with money can simply massively burden the minor players, often to bankruptcy.
A Patent is simply a ticket to start a lawsuit as a plaintiff. So just file, get your ticket, and start suing competitors, putting on them the burden of proving your patent is worthless.
That is the opposite of the way it is supposed to work.
Without some kind of penalty beyond the costs of patent & prosecution, this is massively anticompetitive.
If your point was that we are, in a practical sense, close to this now, then yes, I agree (but that was not clear to me in that comment).
Interesting that you view the patent as a sword. Depending on your view of mutually assured destruction, you could also view the patent as a shield.
Certainly this is what I was told when I started filing them at my mega corp. 3K for filing, 10K bonus if granted and helping shield the product in case we are served. Our patents can be horse traded to settle a dispute. Because I believed in our team, product etc. it was easy to think we should be capable to defend ourselves; we were the best and that meant the stragglers would come for us using any means available, including patent trolling.
Are you the legal department? Do you know what your legal team does with it? Do you really trust your management team to be good stewards?
The only upside to patents as originally formulated was they actually traded an implementation blueprint for exclusivity. A worthy trade. Many patents don't even do that anymore, and devolve down to "draw the rest of the owl" tier parking lots on ideas. IP attorneys have done nothing to skew away from this outcome.
The entire idea of defensive patents makes a mockery of the original intention. "Patents are so fucked that the only recourse is to get your own patents so that even though you may inftringe others' patents they likely also infringe yours and would lose as much as they can gain by enforcing their purpoted exclusivity." MAD.
Curious why you say that it mocks the original intention.
If they're infringing on you, and you're infringing on them, then it nets out. By patenting your own developments, you allow yourself to legally net out. If you don't patent it, then in the eyes of the law it is not equal. Seems like its a quantification of intellectual property, which doesn't mock anything.
The issue at point with the patent system is that it was intended to incentivize innovation, and the evolution of the State of the Art. The building of large general patent portfolios by wielded by NPE's as a financial instrument does the exact opposite.
So while you might "net out", said netting out is not helping society actually advance, in fact it makes it more difficult to do so as you try to avoid potholes created by patent x-1 in your own journeys to actually innovate/invent.
The moment you get a self'sustaining finance engine implementable from a legal construct, it will be beaten reoeatedly, as fast and hard as possible til all the money possible can be extracted.
Like many weapons systems, patents can certainly serve defensively as well as offensively. In this case, defending against others using them as offensive weapons.
Patents can also have some marketing value.
The one thing the do NOT do is universally stop infringement in real time, which is what people think they do.
If you have a new product/technology, a large company that wants to use it will simply go ahead and litigate it later. You will have a ticket to sue them. They'll have their defensive wall of patents, and maybe you'll make a deal and settle out of court. If not, you'll try to stay afloat and if you manage to fund the suit, in 9-15 years after all the appeals, maybe you get a big judgement.
If it's a small or Chinese company, they'll just run with it, you can sue them, if you're lucky, you'll get an injunction to have products seized at the ports by customs, and you'll never collect a penny at the end because the company will be long dissolved. They'll have stolen some of your market with impunity.
Medium-sized companies might actually respect a patent, because they are intending to stay in business, but don't have unlimited resources.
Make fees means tested and scaled to income or wealth. Make fees scale according to a power law. There are numerous ways to level the playing field. We have only to improve upon the current system and cannot let perfect be the enemy of good.
What? What you are proposing has nothing to do with the perfect vs the good, it is a massive fantasy completely ignorant of how things actually work.
Fees are merely a rounding error in the overall cost of patents, prosecuting (obtaining) them, pursuing cases against "violators" or defending them. The fees are in the $hundreds to small $thousands of dollars [0]. It typically costs $20,000 to $50,000 in patent lawyer fees to get a patent. A company I was personally involved with ran up over $350K in attny bills to obtain only a handful of patents. The fees were a rounding error.
Fees for prosecuting a "violator" or defending a suit? Again, court fees are in the $100 range. Just the opening motions would be in the $20,000 range easily. And that does not even begin to account for the technical and executive time to understand and mount a defense.
I've been directly involved, and one thing that is absolutely the opposite of scalable is the court system. It is massively time-consuming and money-consuming. Worse yet, it takes many years for any case to wind it's way through the system, often more than a decade.
Yet, you are proposing dumping the entire issue on the courts and attorney system. How are you proposing to mitigate those costs?
Seriously, not to be rude, but you should stop positing about stuff of which you are clearly massive ignorant (or actually explain how your proposed solution would actually work among all the factors).
Help me understand how cost scaling doesn't fix the problem of "players with money can simply massively burden the minor players, often to bankruptcy." If it becomes more costly for players with more money to burden minor players, then would they not burden minor players less?
Reducing costs might help, but how would you go about reducing the costs?
As GP points out, the most of the cost isn't government fees. It's paying your own private lawyer or law firm, for their time and advice, assuming you choose to do that. And to the other party's lawyer if you lose in litigation, perhaps.
Your lawyer is a private arrangement which mostly doesn't involve the government. The government fees are already low.
Given that, how does your proposal differ from "patent lawyers should charge much less for their time, to people with less money"? It's hard to imagine them voluntarily reducing their income by a large factor to a large number of people, or agreeing to take on lots of low paid work when they have better offers.
But there are other models, e.g. no win no fee works in some fields.
For the small players, you aren't reducing the costs
This includes but is not limited to 1) the costs of the courts. 2) the costs of the attorneys to defend, 3) the costs of the technology and executives to mount a proper defense, 4) the opportunity cost to the small defending company which COULD OTHERWISE be focusing it's resources on something productive like a new product or support (vs defending a bogus lawsuit).
Again, the courts do not even begin to scale - the courts are the opposite of scalable.
The new class of enabled patent trolls may lose one case, but they'll win others, possibly because they've bankrupted their victim, and can continue to plague the rest of society.
Moreover, the courts are massively inconsistent. Again anti-scaleable. The inconsistencies get worked out through appeals to higher courts. This literally takes decades and hundreds-of-thousands to millions of dollars per case. They do not get worked out when it is state cases, which is why we have already have venue shopping (you know about the East Texas patent scam courts, right?).
And your so-called "solution" to charge big players orders of magnitudes more cannot be gamed? Simple, make a small company, pay the small fee, buyout later. Or syndicate the fees, or get rounds of investors to handle the fees, since the return is virtually guaranteed. Ya, then you change the fee structure (years later) and the game begins again.
The fees are only a rounding error in the costs, and if you think exponentially higher fees cannot be gamed, I'd like to talk to you about a fantastic deal on an oceanfront property in Kansas, because you are so friggin gullible.
No, automatically granting patents with some weird scaled fee structure and letting the courts sort it out is one of the worst ideas ever. You would literally lay waste to entire sectors of innovation. It would be only a few years before people would soon be screaming for proper centralized regulation and a patent office capable of judging obviousness and prior art; congratulations, you've just re-invented what the founders invented nearly 250 years ago.
Seriously, you are making a nice demonstration of how ignorance of how a real system works creates the illusion of finding wonderous solutions.
For every highly complex system problem there are a huge variety of simple solutions, all of them wrong. Congrats, you just found one.
The greatest costs are how much time you spend, your attorney's spend, etc. which are not arbitrary fees that can be increased or decreased by decree. So increase or decreasing fees won't improve accountability much.
The basic problem is patent cases are inherently highly complex and specific to particulars and context, and the legal system is inherently inefficient and unpredictable.
These are worst case legal situations for good actors, but the best case terrain for bad actors that can carefully select the battles they want!
The only "simple" solution I can think of is, that a pattern of patent troll behavior is explicitly made illegal, and judgements and findings against trolls can puncture normal limited liability protections of corporations and business arrangements.
Taking out the serial trolls could then be made profitable and repeatable for legal entrepreneurs, who can assemble the deep pockets, and accept the large risks, required.
Because these questions are so obvious it seems like trolling, sorry for the impatience.
Having run businesses, been involved with patents and the courts, some things are blindingly obvious. So I'll step back a bit.
First, the courts are insanely overworked, so things take forever, lawsuits are insanely expensive for both sides. Most importantly, the entire court system is structured to be anti-scaleable.
Even attempting to use the courts as a scaling solution works against the entire design. If you are sued, you have lost the minute you get served - defendant always pays, and the entire effort and costs are on you, even if you win. The only solution would be to redesign the entire court system, and since the courts are constitutional creations, that means literally re-constituting the entire country (Constitutional Convention, dissolve the old constitution, start from scratch; I can hardly think of anything more dangerous in today's climate).
On the small business side, there is literally nothing that can be done.
Even take a thought experiment where someone magically funds a bottomless supply of money to defend patent cases — no small biz ever spends a penny on attorneys and court costs, and can always afford the best attorneys (nevermind that wrongly accused criminal defendants still need to get by with underpaid & overworked public defenders).
This is still a massive unbearable cost for the small or medium sized business, simply because of the huge of management distraction involved in running a lawsuit. In a lawsuit, it is NOT just "let the attorneys handle it". Every case is unique, and the attorneys are handling only the legal issues — they need to be educated from scratch on the issues in the case, and all that time and effort to educate the attorneys comes from the defendants. Then, the defendants must to sit for depositions (a whole day or more), which need extensive preparation, and be involved in preparing for trial, which just blows entire days or weeks out of the schedule, and so on...
So, even if the external costs are 100% paid, it is still enormously costly. Even if you also paid every exec and employee involved their entire fully loaded employment cost, it is STILL too costly, because of the opportunity cost. Those person-months of time are all taken from the company's productive work on their products.
Now, multiply this by dozens or hundreds of lawsuits on every patent, trying to simply sort out whether the patent is even valid. The overall cost to society would be insanely massive. Giving each patent examiner 10X the time (vs the simple doubling requested by the examiner's comment above), and doubling their pay would not even be a rounding error compared to the costs you would impose on every innovative business with such a court-based plan. And, the results would be worse.
Part of the reason I find this annoying is that I also used to start from a Libertarian perspective. It is very attractive. But every time I started to work through how a Libertarian solution would ACTUALLY work, I found that even the first-order consequences were ludicrous, and usually ludicrously expensive. I would up re-inventing the government structures that we already have. So, it is either naive, or a trope to sucker naive people into trying to tear down the institutions that society has already built. Of course these need to be improved, and they should be, but the L approach really doesn't begin to work.
Moreover, let's go outside your paradigm of costs, and do a thought experiment that assumes that it is solved. Even then, this would be a bad solution, because it takes too much time for either side.
If you are a genuine inventor, and have a truly novel, original, valuable invention, you want the patent to deployed and fully enforceable as rapidly and fully as possible. Waiting years for multiple cases to sift their way through the courts only allows others to infringe for those years. Even if you rightly collect judgements in the end, those are unlikely to make up for the market leadership opportunity cost you lost to the infringers.
If, OTOH, you are a small-medium business being sued for a bad patent, you also want it clearly defined that the patent is invalid, so you can move on. Waiting for multiple courts to decide only costs you more money, distraction, and market opportunity.
What is really good for everyone is a very serious, fully funded, fully staffed and highly competent National Patent Office, which can effectively and reliably determine patent-ability, and is widely respected for its expertise. That is best for everyone because there are clear boundaries. It would also mean far fewer patents because there are a LOT of junk patents out there.
A Patent is simply a ticket to start a lawsuit as a plaintiff. So just file, get your ticket, and start suing competitors, putting on them the burden of proving your patent is worthless.
That is the opposite of the way it is supposed to work.
Without some kind of penalty beyond the costs of patent & prosecution, this is massively anticompetitive.
If your point was that we are, in a practical sense, close to this now, then yes, I agree (but that was not clear to me in that comment).