FTA: "The new fee would be a much more exorbitant cost for some patent holders that would function like a property tax."
I've long thought that'd be a good idea: The government practically gives away these legal monopolies — but really, they're like hunting licenses, allowing patent holders to try to levy (what amount to) taxes that are paid indirectly by the public. So it doesn't seem unreasonable that the public should get its cut.
Yes, sometimes a patent holder really is providing a benefit to the public in exchange — but not always.
> This is a reward for taking risk in R&D and for sharing the result with the public via patent disclosures, not a tax.
You say potato .... The "reward for risk-taking and sharing knowledge" is a nice story, and sometimes it even matches the reality. But all too often it's a malign fantasy. That's especially true given that it's been a long time since patent filings were a significant channel for disseminating new knowledge. (How often do people look up patent filings when researching how to do something?)
Source: In an earlier career phase, I was a partner in one of the U.S.'s biggest IP-litigation boutique law firms. I spent a good deal of my time representing tech companies you've definitely heard of, busting bullshit patents that were being asserted against them by people who naively imagined — or cynically insisted — that they'd come up with Something Really Great and had their hands out looking for a huge, undeserved payday. "Nice little business you have there — it'd be a pity if a court granted a permanent injunction that put you out of business."
The incentives and legal structure are all in favor of filing patent applications on everything you can think of and seeing what you can wheedle out of an overworked patent examiner — then after your patent is issued, you go hunting to see what you can get from companies in the way of settlement deals to pay you to go away. By no means are all patents this way, but it happens often enough to be a problem.
That's why Congress passed legislation such as the amendment establishing "IPRs," inter partes reviews. Those are essentially a way to have a three-judge panel within the USPTO take a fresh look at a challenged patent's validity. They're contested proceedings where the challenger gets to introduce evidence and make arguments.
And so... how does a property tax fix any of what you're describing? If it's a bullshit patent that's not being deployed to the market, it can't possibly be very valuable, ergo will have no carrying cost. Only the patents that are deployed to the market and valuable will have high carrying costs.
> But all too often it's a malign fantasy.
All too often to severely destroy the incentive to invent new drugs? Yeah, gonna need a better source than your intuition as a patent lawyer to substantiate that.
Roger that. By the way, we factored that tax burden into the license fee so you can utilize the covered device/process, so in actuality, we the patent holder, aren't paying the tax, you the licensee are. Our accountants, if they were yours, would advise you to pass the cost onto your customers.
That money never comes out of the top level legal fictions. It's always the consumer.
I'm not sure that line of reasoning works. If the consumer pays, the patented or patent-using product costs more, and the consumer gets to choose. As it stands, all we citizens and taxpayers pay the cost of patent enforcement. I don't get to choose to pay or not for a particular patent enforcement. I would if the cost of enforcement showed up in product price. Let the market decide.
The market is deciding. You just basically agreed with me without realizing you did. The consumer, in buying a covered device must pay the cost for it's production. That cost is set as a function of cost to acquire patent * markup by the patent holder to license out the patent to parties looking to produce it. If an extra tax or fee is implemented to "punish" Non-practicing entities that just hold onto patent portfolios to license, you haven't solved the problem, you've just made it slightly riskier. The cost of that punitive fee will get rolled into the cost to license the patent. That cost will then be passed on by the licensee in terms of price to the consumer/next link in the chain.
The consumer will bear the burden. Either in higher end prices, or less patented things actually being made because "the market" (read: bunch of guys in suits at investment banks) decided the profitability wasn't where they wanted it.
The invisible hand has an effective address these days, in case you didn't notice.
FTA: "The new fee would be a much more exorbitant cost for some patent holders that would function like a property tax."
I've long thought that'd be a good idea: The government practically gives away these legal monopolies — but really, they're like hunting licenses, allowing patent holders to try to levy (what amount to) taxes that are paid indirectly by the public. So it doesn't seem unreasonable that the public should get its cut.
Yes, sometimes a patent holder really is providing a benefit to the public in exchange — but not always.
> allowing patent holders to try to levy (what amount to) taxes that are paid indirectly by the public.
What are you referring to here? The premium that a patent holder (one who created or purchased novel, valuable IP) is able to extract?
This is a reward for taking risk in R&D and for sharing the result with the public via patent disclosures, not a tax.
> This is a reward for taking risk in R&D and for sharing the result with the public via patent disclosures, not a tax.
You say potato .... The "reward for risk-taking and sharing knowledge" is a nice story, and sometimes it even matches the reality. But all too often it's a malign fantasy. That's especially true given that it's been a long time since patent filings were a significant channel for disseminating new knowledge. (How often do people look up patent filings when researching how to do something?)
Source: In an earlier career phase, I was a partner in one of the U.S.'s biggest IP-litigation boutique law firms. I spent a good deal of my time representing tech companies you've definitely heard of, busting bullshit patents that were being asserted against them by people who naively imagined — or cynically insisted — that they'd come up with Something Really Great and had their hands out looking for a huge, undeserved payday. "Nice little business you have there — it'd be a pity if a court granted a permanent injunction that put you out of business."
The incentives and legal structure are all in favor of filing patent applications on everything you can think of and seeing what you can wheedle out of an overworked patent examiner — then after your patent is issued, you go hunting to see what you can get from companies in the way of settlement deals to pay you to go away. By no means are all patents this way, but it happens often enough to be a problem.
That's why Congress passed legislation such as the amendment establishing "IPRs," inter partes reviews. Those are essentially a way to have a three-judge panel within the USPTO take a fresh look at a challenged patent's validity. They're contested proceedings where the challenger gets to introduce evidence and make arguments.
And so... how does a property tax fix any of what you're describing? If it's a bullshit patent that's not being deployed to the market, it can't possibly be very valuable, ergo will have no carrying cost. Only the patents that are deployed to the market and valuable will have high carrying costs.
> But all too often it's a malign fantasy.
All too often to severely destroy the incentive to invent new drugs? Yeah, gonna need a better source than your intuition as a patent lawyer to substantiate that.
Hey you know how the government can raise revenue? Tax the billionaires!
This is a stupid proposal.
Why is it stupid? The patent holders that would pay the most are billionnaires, right? Either humans, or corporations. Don’t you think this is good?
Accounting games will mean they don’t pay. Just raise the corporate tax rate instead. Likely will hurt smaller companies.
To understand what "Trump" wants to do with patents, just read Project 2025. Patents are covered.
This sounds like a great idea to me. Why should we as a society enforce exploitive monopolies for some evil mega corporations? Make them pay.
Roger that. By the way, we factored that tax burden into the license fee so you can utilize the covered device/process, so in actuality, we the patent holder, aren't paying the tax, you the licensee are. Our accountants, if they were yours, would advise you to pass the cost onto your customers.
That money never comes out of the top level legal fictions. It's always the consumer.
I'm not sure that line of reasoning works. If the consumer pays, the patented or patent-using product costs more, and the consumer gets to choose. As it stands, all we citizens and taxpayers pay the cost of patent enforcement. I don't get to choose to pay or not for a particular patent enforcement. I would if the cost of enforcement showed up in product price. Let the market decide.
The market is deciding. You just basically agreed with me without realizing you did. The consumer, in buying a covered device must pay the cost for it's production. That cost is set as a function of cost to acquire patent * markup by the patent holder to license out the patent to parties looking to produce it. If an extra tax or fee is implemented to "punish" Non-practicing entities that just hold onto patent portfolios to license, you haven't solved the problem, you've just made it slightly riskier. The cost of that punitive fee will get rolled into the cost to license the patent. That cost will then be passed on by the licensee in terms of price to the consumer/next link in the chain.
The consumer will bear the burden. Either in higher end prices, or less patented things actually being made because "the market" (read: bunch of guys in suits at investment banks) decided the profitability wasn't where they wanted it.
The invisible hand has an effective address these days, in case you didn't notice.