Patents are not about damages. A patent is a limited-time monopoly to an idea that you can then extract value from. Inventing something, patenting it, and then licensing it out is exactly the business model patents are supposed to enable. Companies that don't make anything are perfectly valid under this model. The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable.
>The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable.
Obviousness is the key issue for me. I suspect most people, even those who work in the technology fields, are not aware that it is considered essentially impossible to prove obviousness (source: I have worked as a consultant on several patent litigation cases). So you have the ridiculous situation that almost everyone in the relevant field believes that almost all patents granted are obvious, but almost no litigation succeeds in finding that same conclusion.
This has always bothered me. The standard is supposed to be "non-obvious to an expert in the field" and yet they hand out patents like candy for things that are obvious to the most casual observer.
My solution is to cap the number of patents granted every year to, say, 1000. Patents would be ranked from least to most obvious and actual prior art investigation would take place (because the number is manageable). The ones below the cap would be unpatentable.
As I said in response to a comment upthread, the existence of an implementation by someone who had no knowledge of the patent should be prima facie evidence that the idea is obvious to an expert in the field. That should get the patent invalidated.
The problem there is that you're trying to prove a negative, which is probably even harder than proving a patent is obvious.
Say Johnny Evilguy digs up your widget from the USPTO database from a Tor connection and then re-implements it. Poof, your patent is dead, and you can't prove he read it.
Karunamon is right - it would be virtually impossible to prove the second implementer never looked at the patent database.
Beyond that, over time things that were novel are no longer novel as the direction of technical development changes, so the timing would be important as well.
Perhaps we need to establish some sort of obvious-evidence protocol? Some kind of common sense argument that can be presented in the court of law and weighed against other evidence?
Example: Someone steals an apple to feed their hungry child. Yes, it's a crime, but sending the parent to prison isn't a solution; the child is still hungry, and now both of them will to varying extents have to be cared for by the state, all over a 59 cent Apple.
The easiest way to prove obviousness is to find printed publications that describe the claimed invention. For obviousness, multiple printed publications can be combined as long as they are in a related field and there would be some kind of motivation for one of ordinary skill in the art to combine what they disclose.
Well, there is a protocol and it is this : "Nothing shall be deemed to be obvious" (except perhaps things that are so obvious that a three year old could invent them).
> A patent is a limited-time monopoly to an idea that you can then extract value from
That's the incentive given to the inventor. In exchange society is supposed to eventually get access to an idea that anyone can make use of.
There's a huge breakdown with this system though--the majority of software patents aren't written in a way that would allow someone to reproduce them. Or as you've pointed out they're so obvious that they would have existed without the patent monopoly grant.
