"Third, and perhaps most important, a significant percentage — maybe as many as three-fourths — of these patents turn out to be either invalid or not infringed. It is this probabilistic nature that most critically distinguishes patents from real property. Under the current system in patent-ignoring industries, consumers benefit from competition during the time before those patents are invalidated or held not to be infringed. Under a real-property patent system, the owners of invalid patents can capture supracompetitive profits during the time before their patents are invalidated, profits made at the expense of consumers and that they will never have to disgorge. That extra profit, in turn, would create significant incentives to obtain and enforce dubious patents…"