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Selling patent enforcement rights

I read the WSJ piece about patent enforcement (see Sept. 16) and I don't get it. I understand that the plaintiffs are persons who do not manufacture the good that has been patented, but so what? I am not getting an impression that there's something wrong with the system, e.g.: (1) the law makes it too easy to determine that someone has infringed a patent; (2) there is a problem in the way that the scope of patents is defined such that persons who really have not infringed are being charged with infringement; or (3) these suits are entirely frivolous (i.e., there's no reasonable question that infringement took place) and yet plaintiffs aren't being sanctioned for their bringing these suits (an example of which would be the case you cite in which the court threw out a claim on statute-of-limitations grounds).

All I'm getting is that Inventor, after properly patenting Invention, sells the patent rights to Enforcer. Enforcer uses the legal system to protect the patent from infringement by Big Manufacturing Conglomerate. Now, I don't know where Enforcer is getting the money to pay Inventor, or (if Enforcer is getting the money from his enforcement efforts), Enforcer is giving Inventor more money than BMC would pay.

But let's assume that's the case.

What makes BMC think that it's OK to infringe on a patent just because Inventor is not making the product himself? It's none of BMC's business. Whether Inventor is or isn't making the product, BMC may not infringe.

And if BMC wants the patent so bad, why doesn't it buy the patent? Or, if Inventor did such a good job with his invention that BMC can't make what it wants to make without using the invention, and it's not willing to pay what Inventor wants, then BMC should make something else. Sorry, but that's life. I'd love to make and sell iPods, but I'm not allowed to.

Then, with fewer infringers, Enforcer can't pay so much for inventions and Inventors have an incentive to market their inventions or to sell them to someone who will make something.

In other words, this problem sounds like one that is entirely the responsibility of Big Manufacturing Conglomerate; if BMC would follow the rules, the market would cause the problem to go away.

-- Barton Jacka, San Diego


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There are several problems that make such cases not follow your happy hypothetical:

-The patent is granted after the fact, when the evil EVIL "BMC" has already started using said invention.

-The patent is granted on some silly thing that has existed since time began (Smuckers attempted to patent the crustless peanut-butter and jelly sandwich, for instance).

-The patent was not understood to cover BMC's procedure/prodcut/whatever - that is, novel claims on exisitng patents.

1 and 2 are the worst offenders, usually, and most often in technology areas, where the people granting the patents have a hard time staying up on things.