I’ve been reading about this whole Blackberry shutdown thing, and a thought occurred to me. Property rights, in a Lockean sense, derive from use of the property. Make improvements and use the property, and you have rights. Abandon the property, and you cede it to squatters, no matter what the “title” you hold says. This is actually the way real property law works in the United States today.

We need something similar for virtual property, in this case, what’s commonly referred to as “Intellectual Property.” The problem that I see is that people are patenting things, in many cases unserious things and whatever pops into people’s heads, and are then just sitting on the patents. This is much like what happened to Research in Motion (the company that makes the Blackberry), who “squatted” on “intellectual property” that the courts have held was owned by somebody else.

Since the phrase in the constitution granting the power to grant limited exclusivity to ideas reads, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” we must ask ourselves at this juncture how the Blackberry suit helps promote the “Progress of Science and useful Arts”. Does it at all? After all, whatever the claim against Research in Motion, it was they who commercialized the concept, took it to market, and made it a part of our common lives, not the parties suing.

Which is not to say that the patent-holders don’t deserve something for their troubles. They did after all, invent something and did get it filed with the patent office. But do they deserve to hijack an enormously successful company, an entire country used to using its products? Is this what the founders had in mind?

I tend to think not. And in fact, what is at dispute here is not whether or not Research in Motion owes the money, that has already been established by the courts. Rather, what is at stake is the size of the damages. So tell me, is there a reason why patents not commercially realized should not have some sort of damage cap applied to them? If you could establish that no serious attempt was made by the patent holder to commercialize the patent, or license it or sell it, and that the party violating the patent didn’t steal the technology from the party suing, but instead separately discovered it by means of concurrent evolution, should not the damages be capped in some way so as to allow business to continue on?

If you were an inventor, a good inventor, but a seriously poor business man, and you invented the Blackberry only to have another company invent it separately and do well with it, would you not be happy with a $500k licensing fee from them? Maybe from each company that’s violating? Would not Research in Motion be happy to pay the fee and move on with their lives? It seems to me the only party to lose out here would be the lawyers.

I know that there are complexities here that would need to be hashed out, but the general principle holds, that inventors who fail to put their patents to use should pay a price for abandonment, and the rest of society shouldn’t be held up at gunpoint when the original inventor decides eventually to cash in.

So tell me, what am I missing?


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