One analogy is pharma research. Rights for a promising candidate molecule are purchased by "big pharma" and they will do the grunt work to validate it and extract the big money from its therapeutic value.
Substitute "FDA market authorization after successful clinical trials" with "that infamous East Texas court district and picking the right targets" (picking a too big target might backfire, picking a too small doesn't really worth the costs, etc.)
Of course the questions are: does this really help inventors? do inventors need help? is it good for society that inventors get help? is the cost of helping inventors this way not unreasonable to the economy? and even if the cost is "low", how fucking fair is it that a lot of businesses are using a given invention but only a lucky few get dragged to court? can we do better? what kind of people patent trolls are? what do they do with the money?
I worked at a small biotech company whose business model was (in part) to do early stage drug discovery research and then sell promising leads to bigger companies, who would take the leads through the FDA approval process. Actually taking a drug through to approval is a $1 billion+ endeavor (with a high probability that it just won't work; e.g. stage 3 trials just fail). Small companies cannot do this.
So a naive solution like "don't allow patents to be sold" actually restricts a bunch of reasonable businesses.
But for most patents there's no realistic way to find patents you might be infringing (for software this is impossible in the general case as a corollary of Fines theorem). That's why we hate patents so much: you only find out if there is a patent if you get sued.
But for pharma there is a way; chemicals are "indexable": because a standard mapping from chemical structure to names exists, if you are using a chemical and want to find whether anyone patented it, you can do so easily.
In an ideal world, the law would recognise this and patents would only be valid in areas where there is a natural way of indexing - which is pretty much only pharma AFAICT
For example, during the late 1800s, a number of companies bandied together to pool their patents together for a commercially viable sewing machine. No single company had been able to develop and file patents that resulted in a working sewing machine. As such, they pooled the patents and negotiated a portion of royalties for everyone who contributed. That would probably have been set up as its own legal entity. With a requirement to be an operating company, such a legal vehicle would not have worked.
You could argue that such an entity is considered “productive”, but then you would have to define what that means and write it into the law. Any lawsuit involving patents would require demonstrating that.
Another example is trademarks. In order to have a registered trademark, you must show that it is in active use, and it is distinct. That means that in order to keep a registered trademark, you must sue anyone who is infringing upon it.
There is an indie author who came up on a litrpg genre concept combining it with a post-apocalypse setting. His book exploded upon the niche, progressive fantasy scene. People loved the idea and other authors wrote books for it. The original author tried to brand it and protect it with a registered trademark. Because the term had rapidly genericized, that author started sending cease & desist letters to other authors, because he was required to in order to keep the registered trademark.
I don’t know if he knew he had do that when he registered it, but doing so drained the goodwill he had in the community. Progressive fantasy is a small indie community, and the authors who can, gather at Dragoncon to talk, exchange ideas. This is similar to sending cease and desist to your neighbors. You will quickly find yourself locked out of the community.
I am thinking of the inventor of the bear suit. Making something to protect yourself from a grizzly bear seems like it has low value for society. It is also this off the wall perspective that allowed him to invent a gel that can absorb heat (probably a non-Newtonian fluid). If we’re trying to protect the livelihood of an indie inventor like that, would a requirement to demonstrate productivity help the Bear Suit inventor? Or would it have a chilling effect?
The patent office is financially encouraged to keep issuing patents no matter the quality because it keeps the patent fees and those are payed by the applicants. The patent office seems to be protected financially from issuing bad patents as well (I can't find any record of them being sued by companies that have licensed patents that have been invalidated).
Its gotten a little better with the Alice ruling.
https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Intern...
Now, how do you make sure that these companies buying patents don’t become trolls? I don’t think it’s fair to require them to use the patent, because that limits who the inventor can sell to. Personally I think the way IP lawsuits are filed and considered needs significant reform.
[1] http://cafc.uscourts.gov/opinions-orders/04-1451.pdf
[2] https://www.pinsentmasons.com/out-law/news/appeals-court-con...
The problem with patents is that they prevent use by 3rd-parties, either by the license being too expensive or by the patentee refusing to grant one. The patentee actually using their patent has no bearing on this. The real solution to this mess is to make patent licensing compulsory. The patent office could decide that in lieu of a contract staying otherwise, a patentee is guaranteed 10% of profits or 5% of production costs, whichever is greater. Patents used to provide ongoing services could be 1% of profits. Non-commercial users should be exempt.
It is weird and unfortunate that the longstanding deficiencies with patent law (chiefly: issuing patents for things that are too obvious or numerous) are being blamed on transferability of property rights. It’s the same broken intuition as over regulating housing construction and then blaming high housing costs on ownership by Chinese nationals.