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: The Patent Prospector

Non-Copyists

By Gary Odom and Jordan Kuhn

One could argue that everything needed would eventually be invented. No need for patent protection in a society content with its technology. Patents accelerate invention, by having an incentive to invent: an exclusivity grant. So whether an infringer copied a patent, or independently developed the technology, is moot. Other than copying as a first step is smarter than reinventing from scratch.

Academic studies can be a paragon of irrelevance. For patent studies, no one does that better than Mark Lemley. Along with Christopher Cotropia, they've published a study about "Copying in Patent Law."

[P]atent infringement requires only that the defendant's product falls within the scope of the patent claims. Not only doesn't the defendant need to intend to infringe, but the defendant may be entirely unaware of the patent or the patentee and still face liability.

Unfortunately, no one seems to know whether patent infringement defendants are in fact unscrupulous copyists or independent developers.

Note the setup by calling copyists "unscrupulous." Who thinks that?

It's unfortunate not knowing about patent copying only because knowing could engender even woollier thinking, and an even more theoretical paper, than Cotropia and Lemley were able to write this round. But not knowing doesn't stop the determined duo, who really want to make something of patent copying. Because without that, a paper about the topic would seem, well, senseless.

Nonetheless, copying does play a role in some subsidiary patent doctrines. For example, the question of whether patent damages should be set in order to deter infringement depends critically on whether infringers are in fact aware they are infringing, or at least that they are using the plaintiff's technology. Copying - or at least intent to infringe - is also an element of claims for indirect infringement. The definition of "willful infringement" also turns on the question of culpability, at least in the popular understanding of that term. More significantly, the rhetoric of patent law (and of IP law more generally) often seems to presuppose that defendants in patent cases are in fact engaged in copying. Similarly, the outcome of public policy debates over patent reform may well turn on the perception of patent infringers as either bad actors or as innocent businesspeople who accidentally ran afoul of a patent.

Cotropia and Lemley stretch and twist to make their point that copying has anything to do with patents.

Only a simpleton would think "the outcome of public policy debates over patent reform may well turn on the perception of patent infringers as either bad actors or as innocent businesspeople who accidentally ran afoul of a patent." That has never been part of the public dialogue regarding the merits of patent reform.

Willful infringement has nothing to do with copying. It has to do with having known of the patent claims, and continued to infringe anyway, regardless of how infringement came about, copied or not.

Patent claims cover a scope, or range, or technology. Broad genus claims, for example, cover multiple species. Infringing a claim by adopting a species is hardly what one would call, de facto, copying. There may be several ways to infringe even a relatively narrow claim. An infringer could adopt an undisclosed technology covered by patent claims. The issue there is not whether the infringer copied, but how broadly claim scope should snare infringement.

As to thinking of patent infringement as copying, Cotropia and Lemley project their straw man.

The idea that a patent constitutes a bargain with the public, in which the patentee gets exclusivity for a limited time in exchange for giving the public information about the invention, presupposes that companies will read and learn from the patent in order to copy the invention (albeit after the patent has expired).

In fact, the problem with patents in business is that companies don't read about others patents. They're afraid to. The fear of willful infringement.

If anything, the patent system is broken because infringers aren't copying patents. Reinvention is wasteful. There ought to be an efficient market for licensing inventions. Maybe willful infringers ought to get credit, and re-inventors pay extra damages.

Full post as published by The Patent Prospector on January 27, 2009 (boomark / email).