This is a problem that needs to be addressed carefully in my opinion.
Right now, it's a perfectly valid decision for an inventive/creative person(or team or company) to choose to spend their time inventing new things instead of commercialising "finished ideas", since the laws are (and have been for decades) written to allow an inventor to sell their patents.
If you're the world's best battery chemist, I'd rather you spent this year looking for an even better battery, rather than needing to be involved in making and selling last years "best battery" to earn any money from it. I don't want the top cancer researchers "wasting time" being personally involved in making drugs at commercial scale and doing deals with Walgreens, I want them doing cancer research - and having a patent/legal system that allows them to earn a living doing so (with the understanding that they've got a choice to license or sell their patents, and whether they get to share in the spectacular riches that some big-pharma company will make if they've just saved millions of lives will depend on how they chose to structure that transaction).
Somehow, we need to allow inventors to continue to be "NPEs", while stopping the obvious "patent troll" techniques of buying up uncommercialised patents with the only intent being to use them to litigate.
(And note, by "inventors" I'm including "companies set up to do inventing, either as their sole business or perhaps with a few staff or division who 'invent' as part of their regular work". I know of companies like http://www.novogen.com and http://www.mesoblast.com who are pretty much teams of biotech researchers intending to work out how to cure cancer, then sell the knowledge to other companies to commercialise it. I also know people at http://www.ecoult.com who didn't invent the technology they're commercialising, but have licensed the patents from the government research organisation that did invent/patent them.)
Nothing in this bill prevents a inventor to sell his finished invention once to whoever want to commercialize it to a product. Nothing. He doesn't even need a patent to do this.
Say that the best battery chemist invents a way to make current lithium-ion battery packs 25% better. In a bidding war, the price would easy reach hundred of millions, because the practical effects of having better batteries are economic interesting for companies being restricted by ineffective batteries.
Regarding cancer research, I find it quite wrong that state funded research is being patented. Most serious medical research is being paid for NiH with the use of tax money. Society has already paid for all the step regarding the research and it due to get what it paid for. Research which has no bases on NiH funded research theories, and has no relation with any public funds what so ever is an exceptional case, and there is a lot of companies out there that produce derivative works from NiH produced research and gets a patent for it. derivative works that has been created from tax money should not allow someone to get a 20 years state enforced monopoly on it.
Most serious medical research is being paid for NiH with the use of tax money.
This is simply not true. The NIH pays for basic research into NMEs (New Molecular Entities). The gap between an NME and a drug (i.e., a molecular entity, approved manufacturing methods, approved usage, identified side effects, monitoring) is huge.
The gap is then derivative work. They basically take the core research done by NiH for free and refine it and demand in return a 20 years monopoly from the state. The biggest single actor in medical research is by a large factor NiH, paid through tax money.
Drug companies are the only market where this is happening. Why should they get this free research if we want the market to handle the research of medical innovation? You don't see the state doing the basic research of mobile phones and then giving it away to Samsung or apple. They can't just take some already taxed funded research and "refine", getting themselves a 20 years monopoly for the effort on the expensive of the public.
And what is the benefit for the public? They give their money away with tax money and get zero back in return? It is taxed paid research, and then the state gives out a additional 20 years enforced monopoly to the first one who do the last step and refine it. Maybe a bit ism'ish, but is this the core idea of capitalism; having the state pay for the core part of the medical industry without getting anything in return?
You don't see the state doing the basic research of mobile phones and then giving it away to Samsung or apple.
The state (mainly the military) did basic research in signal processing and electromagnetism. Apple and Samsung turned that basic research into consumer devices you can buy at the store.
They give their money away with tax money and get zero back in return?
If private entities didn't turn molecular entities into drugs, then yes, the public would get nothing for their money.
The fact is you can't buy arbitrary chemicals in the pharmacy, and very likely you believe it should be illegal to do so (do you favor abolishing the FDA and all drug regulation?). Pfizer needs to turn drug ideas (what the NIH generates) into actual drugs, just as Samsung needs to turn coding schemes and relativistic corrections into actual consumer devices.
This isn't much of a problem if the inventor sells the patent outright to the company that is going to use it. Then the new owner is not a troll and could legitimately sue infringers. I agree that it's problematic if the inventor structures the deal as a license.
The problem there is that Intellectual Ventures would be allowed to remain, but they're the largest patent troll in the industry and a large part of the reason that this conversation is even taking place.
In one sense, this suggestion is as good or better than any I've heard. Let the defendant raise the possible issue with a judge - let a (presumably impartial and intelligent) judge look at it on a case-by-case basis, and let the plaintiff know in selected cases "this one's going to cost you lots if you lose". I guess there's then be a danger of a "reverse class action" thing, where someone like the scan-to-email patent holder sends out hundreds or thousands of legal threats, and some law firm decides to try and run up half million dollar costs for each and every defendant.
As long as the judge is aware when the suing party is a shell company vs. an actual small business and requires some sort of monetary escrow only for the former.
I don't know if "danger" is the word you are looking for :) I'd love to see a "reverse class action" happen to an intellectual vulture; the only way it would be better would be if the judge allowed the "defendants" to pierce the veil when it came time to collect.
The main distinguishing factor is whether or not the alleged infringement was actually independent rediscovery or not.
Patent trolls are dangerous because they hold patents on things that are easy to independently rediscover. It's too easy to infringe by accident, without ever reading troll patents.
Right now, it's a perfectly valid decision for an inventive/creative person(or team or company) to choose to spend their time inventing new things instead of commercialising "finished ideas", since the laws are (and have been for decades) written to allow an inventor to sell their patents.
If you're the world's best battery chemist, I'd rather you spent this year looking for an even better battery, rather than needing to be involved in making and selling last years "best battery" to earn any money from it. I don't want the top cancer researchers "wasting time" being personally involved in making drugs at commercial scale and doing deals with Walgreens, I want them doing cancer research - and having a patent/legal system that allows them to earn a living doing so (with the understanding that they've got a choice to license or sell their patents, and whether they get to share in the spectacular riches that some big-pharma company will make if they've just saved millions of lives will depend on how they chose to structure that transaction).
Somehow, we need to allow inventors to continue to be "NPEs", while stopping the obvious "patent troll" techniques of buying up uncommercialised patents with the only intent being to use them to litigate.
(And note, by "inventors" I'm including "companies set up to do inventing, either as their sole business or perhaps with a few staff or division who 'invent' as part of their regular work". I know of companies like http://www.novogen.com and http://www.mesoblast.com who are pretty much teams of biotech researchers intending to work out how to cure cancer, then sell the knowledge to other companies to commercialise it. I also know people at http://www.ecoult.com who didn't invent the technology they're commercialising, but have licensed the patents from the government research organisation that did invent/patent them.)