It is very disconcerting that you as a friendly lawyer don't see this argument as being plain, obvious, indisputable and a slam dunk.
I am a FRANDly lawyer, but I sometimes like to take the opposite side of an argument, and frame it as best I can, just for kicks, then see what happens. Plus, the holes I can punch into it are based on economic policy grounds which the market really doesn't care about.
The argument that relative equal value should be assigned to all essential patents is not a frivolous one. I am trying to develop holes in it myself, but it is difficult.
I think the best solution will be to have a body of unbiased experts weigh the relative value of all patents, using all relevant factors including cost to develop, the degree to which the patent breaks new ground, its essential nature, etc. I don't think the market can be trusted to do this equitably as market forces seem destined to assign relatively equal weight to all essential patents.
And you are absolutely right, assigning equal weight to all essential patents may be the death knell to innovation on a grand scale, the kind of innovation which led to CDMA. Any weighing scheme has to take that factor into account.
I don't think the ashtray analogy is a very good one. I would use the airbag analogy instead. Sure, airbags are not necessary for the operation of an automobile, but the law, e.g., a legally imposed standard, requires them. Cars cannot be sold without them. |
