Thomas Jefferson's 1788 quote, in a way, portends this: "the natural progress of things is for liberty to yield and government to gain ground." The dictionary definition of government ("authoritative direction or control") ostensibly extends this to encompass corporations. Patents are merely one of many tactics for corporations gain control; it's nothing new, and it ought to be expected.
Notwithstanding the foreseeability of patent warfare, I remain despondent toward "unwritten rules" in American law. Yes, they exist; it's no surprise that defendants in criminal cases who assert their 6th Amendment rights to a speedy trial that they subsequently lose will suffer a heightened penalty. The seminal case on this subject, Bordenkircher v. Hayes, specifically endorses threats of stiffer sentences to entice criminal defendants to waive their right to trial and plead guilty to a lesser offense. One can model this as a game of imperfect information, with society reaping the rewards.
So the author's reliance on this de facto "rule not to litigate" is flawed. The real problem arises when companies exclude others from practicing a technology in which that company's property interest is a mere subterfuge. Rarely do companies practice the technologies for which they've secured patent protection, and that brings me to my last Thomas Jefferson quote:
A man has a right to use a saw, an axe,
a plane, separately; may he not combine
their uses on the same piece of wood?
He has a right to use his knife to cut
his meat, a fork to hold it; may a
patentee take from him the right to
combine their use on the same subject?
Such a law, instead of enlarging our
conveniences, as was intended, would
most fearfully abridge them, and crowd
us by monopolies out of the use of the
things we have.
However, we should be careful not to criticize the managers of these companies too much: they have a fiduciary duty of care to the corporation. Is there another "unwritten rule" that shareholders of a (struggling) corporation won't launch a derivative suit against the board of directors for failure to assert the corporation's patent rights against an infringing third party?
So in my view, the solution isn't at the corporate level; it's at the national level. As such, patent reform should be a national issue addressed by politicians. Patent term length [c|sh]ould be proportional to the research expenses actually incurred. Alternatively, we might want want a "patent abandonment doctrine" that moves to public domain those patents whose rights haven't been enforced (almost like in trademark law). Even still, we might want to wholly abandon the right to transfer or sell patents (and for that matter, all intellectual property) entirely. I haven't researched the ramifications of these potential solutions, so they're offered merely as points for discussion.
In this case, it's unnecessary to make a leap from government gaining control to corporations gaining control, since patents are created and enforced by governments, not corporations. On top of that, a corporation is by definition an entity created by a government.
Notwithstanding the foreseeability of patent warfare, I remain despondent toward "unwritten rules" in American law. Yes, they exist; it's no surprise that defendants in criminal cases who assert their 6th Amendment rights to a speedy trial that they subsequently lose will suffer a heightened penalty. The seminal case on this subject, Bordenkircher v. Hayes, specifically endorses threats of stiffer sentences to entice criminal defendants to waive their right to trial and plead guilty to a lesser offense. One can model this as a game of imperfect information, with society reaping the rewards.
So the author's reliance on this de facto "rule not to litigate" is flawed. The real problem arises when companies exclude others from practicing a technology in which that company's property interest is a mere subterfuge. Rarely do companies practice the technologies for which they've secured patent protection, and that brings me to my last Thomas Jefferson quote:
However, we should be careful not to criticize the managers of these companies too much: they have a fiduciary duty of care to the corporation. Is there another "unwritten rule" that shareholders of a (struggling) corporation won't launch a derivative suit against the board of directors for failure to assert the corporation's patent rights against an infringing third party?So in my view, the solution isn't at the corporate level; it's at the national level. As such, patent reform should be a national issue addressed by politicians. Patent term length [c|sh]ould be proportional to the research expenses actually incurred. Alternatively, we might want want a "patent abandonment doctrine" that moves to public domain those patents whose rights haven't been enforced (almost like in trademark law). Even still, we might want to wholly abandon the right to transfer or sell patents (and for that matter, all intellectual property) entirely. I haven't researched the ramifications of these potential solutions, so they're offered merely as points for discussion.