I really have to say that big-tech needs to give their PR groups big-raises. The way that the patent debate has been framed in the last 90 days is both impressive and alarming. Poor billion dollar firms crippled by their inability to perpetuate the railroading they've been glibly giving "small guy" patent holders since the late 1980s. The latest craze seems to be a requirement that in order to enforce a patent, at least via injunction, one must have commercialized the technology (or perhaps be in the process of attempting it). This, of course, is folly. I grow tired of the incessant mewings that eminate from the gaping mouths of firms (like Research in Motion and, worse, EBay, which actually freely admits to having infringed on the patents in question) that have willfully and for years disregarded patents held by smaller players and now want a "pass" when the time has come to pay the piper. Reasearch in Motion, most recently, has directed its mewing to Congress.
Recall that the purpose of the patent system is to foster innovation. Limiting protection to entities with the resources to "commercialize" an innovation would, in my estimation, have both a chilling effect on small "garage" innovators, and destroy the (currently rather liquid) market for innovation.
With respect to the chilling effect, small innovators are suddenly confined to "trade secret" protection for their innovations, quite a burdensome thing to maintain and a more difficult thing to market. Lacking patent protection (and the upside incentive it creates) what incentive does the "little guy" who has no hope of ever commercializing something have?
The more interesting (disturbing) issue is the impact on the market for innovation. Today, built up primarily in the 1990s, the United States possesses a highly developed market for innovation called "venture capital." The process of matching investment funds with innovation concepts and providing large upsides for all participants is well refined and balanced. There is a reason one of the first issues a venture capitalist focuses on when evaluating a new investment is "barriers to entry." This brings up two questions.
1. What will constitute "commercialization" for the purposes of allowing a patent holder to apply an injunction? Clearly "big-tech" wants this standard to be quite high. An actual selling product in the marketplace, probably. The only real downward direction to go would be something more akin to "efforts reasonably likely to effect commercialization." Which, of course, is entirely silly.
2. How will VCs use the negotiating power implicit in the phrase, "Well, without us how are you planning to commercialize it?" in discussions with the "little guy"? (It should be obvious that this second question is rhetorical).