특허괴물의 현상 분석과 특허제도의 본질에 대한 고찰

A Studies on the nature of patent institution through analysing "patent troll phenomenon"

"Patent troll" was first coined by intel, whose in-house counsel was quoted to have said, "Patent troll is somebody who tries to make a lot of money off a patent that they are not practising and have no intention of practising and in most cases never practiced." They obtain patents, not to make, use, or sell new products and technologies, but sorely to force third parties to purchase licenses. The technology industry's principal complaint is that patent trolls have no interest in finding business solutions or "win-win" scenarios. A patent troll's only goal is to extract quick cash, not to create technology development. The rate of patent lawsuits is rising faster than any other type of litigation. As a result, company resources diverted from R&D to litigation may deter investment in innovation and distort its directions. Patent litigation is a high-risk, high-cost proposition. A Staggering fifty percent of all patent verdicts are reversed on appeal. The significant litigation costs provide a strong incentive for most competing companies to find a path to resolution outside of litigation. There is no provision for patents to be invalidated merely because they are used in manner that discourages innovation. Under the current patent system, a finding of infringement would result in automatic issuance of a permanent injunction and other penalties. The cost of litigation are often greater than the licensing fees the troll requests. These costs have adverse effects on future innovation because they take away from companies' research and development budgets. The results is that patent actually restrict the progress of science and innovation, the exact opposite effect that they are intended to have. The impact of patent trolls has led to propose patent reform act in 2005, 2007 and 2009. The patent reform act resets the table on issues of liability and remedies in ways that will encourage industry and discourage patent trolls. By lowering the threshold for invalidation a patent, the patent reform act will give targeted companies new opportunities to challenge the dubious patent. The rising speculation in intangible assets by patent trolls may indicate that patent are ready to evolve to the next level. Just as air space rights and carbon emissions before them, patents could be traded on stock exchange. This evolution could take the form of a Patent Investment Trust, modeled on the popular Real Estate investment trust. Patent Investment Trust could eventually lead to a stable market for patent sales and licensing. Patent has been well regarded as property like other tangible property. It is said that primary value of holding a patent is the right to exclude others from the manufacture, use or sale of the patented article. Actually, patent was a special legal privilege justified only because these "monopolies of invention" served the "benefit of society". Therefore, it is time to rebuild a sui generis right for information or knowledge based on their nature. The nature of knowledge is to dissemination. Therefore the legal structure for knowledge i.e. "Knowledge Right" should not contain injunction, but only contain monetary compensation.