I think the non-performing entity argument is a red herring. As long as patents exist at all, patent rights will be salable.
Rather, I think the problem is that the vast majority of these patents fail to cross the obviousness bar and should never have been granted at all. I mean, seriously, a patent on sending a fax by email, when lots of things are already being sent by email? Give me a fucking break!
I think the fundamental problem is this. A patent is a deal we, the people of the US, make with an inventor: add significantly to the sum total of our technical knowledge, and in exchange, we'll give you a time-limited monopoly on the technique you invented. The problem is that there isn't anyone unambiguously charged with making sure this is a good deal for us: that the knowledge we're getting is worth the price we're paying. It's technically the PTO's responsibility, and they do make some effort, but the incentives given patent examiners don't encourage them to be hard-nosed about it.
Rather, I think the problem is that the vast majority of these patents fail to cross the obviousness bar and should never have been granted at all. I mean, seriously, a patent on sending a fax by email, when lots of things are already being sent by email? Give me a fucking break!
I think the fundamental problem is this. A patent is a deal we, the people of the US, make with an inventor: add significantly to the sum total of our technical knowledge, and in exchange, we'll give you a time-limited monopoly on the technique you invented. The problem is that there isn't anyone unambiguously charged with making sure this is a good deal for us: that the knowledge we're getting is worth the price we're paying. It's technically the PTO's responsibility, and they do make some effort, but the incentives given patent examiners don't encourage them to be hard-nosed about it.