> “[Is Blackbird] doing anything thing that is illegal or unethical?” continues Cheng. “For the most part, it’s unethical. But it’s probably not illegal.”
If it's not illegal, more work needs to be done to make it illegal. Inventors always have avenues, moreso today than ever before.
IIRC, the settlement came about because the plaintiffs were able to prove that the song had been published and put in the public domain. They had found a copy of a songbook which was the definitive proof.
How did they find the songbook? They were given a scanned copy in discovery... with most things clear, and the date suspiciously blurred. After a few months of looking, they found a print copy which confirmed their suspicions.
i.e. it looks like Warner Brothers deliberately fudged the evidence. If the plaintiffs hadn't noticed, or hadn't been able to find a print copy, people would still be paying license fees.
When there is no punishment for lawyers who break the law, I think that "ignorance of the law" is an excuse. There is just no way that ignorance isn't a defence for me, while at the same time the lawyers use the law to attack me, and aren't punished for their violations.
> allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee
I think there should be a punitive part to this as well. If you apply for a patent that is later invalidated, then those that licensed the patent should be made repaid. And yes there should be a fee for trying to invalidate a patent, but there should also be a reward if they are successful.
> If you apply for a patent that is later invalidated, then those that licensed the patent should be made repaid.
I feel that this effectively says that nobody should be able to license their patent: they would need to hold all of their license fees in reserve against a lawsuit that could happen at any time between the patent grant and the end of the legal system.
That or buy insurance which will, no doubt be priced well above what a sole inventor could afford.
The net effect would be to accelerate the concentration of patent portfolios.
The worst case is that the money has to be repaid - how would insuring against that be prohibitive? If there's a 20% chance of invalidation, inventors take a 20% haircut.
But the invalidation chance will not be uniform, and the risk assessment done by insurance companies will bring the right kind of market forces to bear against frivolous patents.
And even aside from the economic impact, it's quite simply the right thing to do. If you shake people down with a government enforced monopoly that turns out to never have legitimately existed, keeping that money is immoral.
> The worst case is that the money has to be repaid - how would insuring against that be prohibitive?
Because, under the proposal, those license fees can be recovered at any time. Forever. You will never be able to go uninsured for any patent you ever granted. As your life wears on, regardless of whether you need the insurance or not, your net value is wound down.
Again, this means that only large companies will be willing to take the chance, because they can spread that risk across a portfolio and afford to defend it. A sole inventor cannot. They might obtain a patent, but under this scheme, they won't license it -- they'll just sell it. And it's just going to be to a large company, a patent broker or a patent troll.
> If you shake people down with a government enforced monopoly that turns out to never have legitimately existed, keeping that money is immoral.
I agree, and courts may be prepared to grant remedies in some cases.
But my point is that it is also problematic to tilt the field still further against sole inventors. That increases the proportion of giant companies and patent trolls, which makes the net situation worse, not better.
> those license fees can be recovered at any time. Forever.
Forever is too long. It should only be for the life of the patent. That might be a nice incentive to open up the conversation to reducing the life of some patents.
So how about once the patent holder is made aware of the prior art, any fees collected after that point are subject to return if the patent is invalidated based in some part on the prior work?
People claim prior art for all manner of things and again, this leaves the sole inventor in an unpleasant bind. A hostile large company could go around scaring sole inventors by saying "oh hey, we found prior art. Incidentally, would you like to license your patent exclusively to us for a pittance?"
Did he? I don't remember that, but maybe I missed it. Also, the relationship between Eastern Texas and patent trolls is related to the branch of the Fifth Circuit court, whose justices are appointed by the President (currently, 3 Obama appointees, 2 GW Bush appointees, 1 Clinton appointee, and one Reagan appointee), not anything that Mitch McConnell has any influence over.
If it's not illegal, more work needs to be done to make it illegal. Inventors always have avenues, moreso today than ever before.