In a recent interview with The Washington Post, Jay Walker, founder of
Priceline.com, has proposed a kind of neutral private-sector
utility for the licensing of patents.
He argues that "We have spent trillions of dollars
inventing things and 95 to 98 percent of all patents have yet to
make their first dollar of licensing revenue".
Take a small or medium-sized business as an example, let's
call it SME Corp. SME Corp. would use this so-called patent utility
to create a profile of the specifications of its own products
and services. The utility would contain a complete database of the
over 2 million active patents in the USPTO, and would then apply
"Big Data algorithms" to measure the specifications of
SME Corp.'s products and services against the patent database.
This method (which would presumably be patented by Mr.
Walker) would identify "statistical relevance"
between the products and services of SME Corp. and the claims in
the patent database. From Mr. Walker's description, SME Corp.
could learn about other relevant technologies, including potential
joint venture partners. A patent holder could generate licensing
revenue by charging SME Corp. a "relatively small
amount" under a "no-fault" license for use of
those patents which overlap with SME Corp.'s products and
services. This royalty amount would presumably be more than
the patent is currently earning outside the utility. By paying the
licensing fee, SME Corp., for its part, would incur a lower
cost relative to the costs of negotiating a formal patent license
agreement outside the utility, while at the same time neutralizing
the patent infringement risk.
The idea is an interesting one. Of course there are inumerable
legal pitfalls, but if nothing else it illustrates the need for a
more practical application of the patent system for small and
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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