Let's say I invent something really useful but also very difficult for an individual to take advantage of, like a new kind of airplane nosecone that shaves 10% off fuel costs for very large airplanes. Now, I'm not in the airplane business, and getting into it would take many, many millions of dollars. Probably the only way for me to make money on this would be to go to Boeing or some similar company and license my patent to them. Boom, I get my millions and everybody's happy.
If I were required to show actual loss, Boeing would see my new patent, just implement it without even bothering to talk to me, and when I tried to sue them, they'd say "you don't make anything, you have no losses," and they'd be right.
You could still sell your patent to an actual airline, and it could then use that patent exclusively and prevent airlines from doing so. In a sufficiently competitive market that might be enough. Boeing might buy your patent to prevent Airbus from using that tech and therefore gaining an advantage. Or if Boeing ignores your patent and just builds that tech anyway then they would expose themselves to future liability if Airbus later buys your patent.
Or you could sell the patent to an existing supplier of airline parts (and I'm sure there are plenty) which can then commercialize it. Or as a last resort if none of the existing players are interested in buying your patent, you could raise funding and open up a shop that manufacturers and sells nosecones, and then sue everyone for lost sales.
Ultimately I think it's much more useful to protect entities that actually make products and give them incentives to bring innovative products to market than it is to protect entities that simply want to invent things and extract fees from others. To me it would be a perfectly acceptable compromise.
Why would an actual airline buy your patent? Presumably you have to show it to them first for them to agree that it works and is valuable. At that point you've already handed over the valuable portion of the idea.
>Ultimately I think it's much more useful to protect entities that actually make products
I've said this before but it keeps ringing true. Entrepreneurial types in software are against patents because its not what they're good at. There's never any more substance behind the opposition than that.
Good point. This is why legal issues are complicated. :(
But the counter is that if you're offering the technology for sale, then lack of sales is an actual loss. The thieves could have paid your price, but instead chose to steal it.
The law of remedies is very broad and most of it has roots in Equity, which gives judges broad discretion to make orders against litigants who fail to "come with clean hands".
I am not a lawyer, of course, but I dropped out of law school late enough to realise that you should always consult one before forming opinions about what is and isn't legally plausible.
I feel like this could be easily covered by an NDA though, and documenting the visit to Boeing. Plus, this is a physical product, I'm speaking more in terms of software patents where the friction to use is much, much lower. Perhaps my idea wouldn't work for general patents, but that's also not what I believe is horribly broken at the moment.
If I were required to show actual loss, Boeing would see my new patent, just implement it without even bothering to talk to me, and when I tried to sue them, they'd say "you don't make anything, you have no losses," and they'd be right.