Patent Prospector: Non-Copyists

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January 27, 2009

Non-Copyists

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.

Comments

Hawk,

What is your main point here?

Are we presuming as part of the rhetoric that the patent system must always constitute a win-win for all involved in order for the patent system to be justified?

I always thought the Founding Fathers considered patents to be a lesser of two evils, the greater evil being in not having protection for IP in the first place.

Sure some (a small percentage of) companies are going to find themselves being unfairly held liable even though they independently re-invented the wheel. But it's not all about the defendant. What about the plaintiff/ inventor? Where is he/ she in Lemley's pretend world? Oh we forgot. The first to invent does not exist and deserves no mention or compensation. It is only the poor innocent out-sourcing, off-shoring, mega-corporation that is the victim here. Boo hoo.

Enron is being unfairly treated. Boo hoo. AIG is being unfairly treated. Sniffle sniffle. MS is being unfairly treated. Whah. _____ (fill in the blank for a Coalition against patents member) is being unfairly treated. Boo hoo. Sob sob. All they did was tell that evil troll to go pound sand during licensing negotiations and now they are being so horribly treated, the poor dears.

Posted by: step back at January 28, 2009 4:56 AM

"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."

Patent Hawk, I believe that you have just called the large body of anti-patent software geeks simpletons, as they have held that enforceability and inadvertint copying are key factors in the debate that software should not be patentable subject matter.

Raise their ire at your peril. You might receive an 18 page dissertation on the anti-patent agenda, including a lecture on how ANY IP protection is morally offensive, but copyleft is OK.

step back,
"I always thought the Founding Fathers considered patents to be a lesser of two evils, the greater evil being in not having protection for IP in the first place." - You might draw the same ire, as these anti-patent people also profess that they have no problem with secrecy and non-disclosure and think such is better than anyone having a patent with its limited exclusivity on anything in the software arts.

Posted by: breadcrumbs at January 28, 2009 5:28 AM

"I always thought the Founding Fathers considered patents to be a lesser of two evils, the greater evil being in not having protection for IP in the first place." -- Step Back

I believe "founders" should be singular, as in Jefferson. He was a total hypocrite on this, almost as much so as his lofty sentiments that all men are created equal, except for his slaves.

Jefferson was anti-patent up to the point where he had an improved plow he wanted to protect. That's when his "lesser of two evils" rhetoric kicked in.

Overcoming Medimmune with legislation is one way to resolve a lot of these "innocent infringer" problems. A patentee cannot give fair and directed warnings to infringers without being dragged into a DJ action. It is judicial idiocy that allows an infringer to twist a patentees gonads simply on the basis of the patentee trying to avoid litigation by advising the infringer of the patent. America . . .

Speaking of idiocy: why do people keep citing Lemley? We would all be far better off if he were simply ignored. You see the sort of mess Moore's online fame has led to.

Posted by: Babel Boy at January 28, 2009 9:08 AM

step back,

My entries always have the same points - to inform/entertain, and provoke thought on the chosen topic.

breadcrumbs,

Apparently, according to comments made, Lemley’s study about patent copying does resonate in the small minds of the simpletons I referred to. Apparently it mattered to Lemley too.

I attracted the ire of “anti-patent software geeks” quite some time ago. And their mean-spiritedness runs deep. There’s even a couple I’m patiently waiting to sue for libel. Timing matters sometimes.

Babel Boy,

Whatever one may think of Mark Lemley's work product, give him credit for prolifically creating work product, much of it, at the least, thought provoking.

No comments yet on enhanced damages for non-willful infringement, to encourage “copying.” Wasn’t that what the patent system was designed for? To engender accelerating invention? How can that be done with massive re-invention?

Posted by: Patent Hawk at January 28, 2009 12:53 PM

Speaking of the Coalition for Patent Fairness, Apple has just received a goliath of a patent for its touch screen with control using "heuristics". USP 7479949. I can hear the metal grinding on the honing stone now...

Posted by: anon at January 28, 2009 6:40 PM

I think the argument that innocent infringers who re-invented the invention ought to be completely off the hook has a lot of merit to it. I think the only important purpose of patent law is to prevent the ripping off or copying of new products.

The government doesn't need to reward good ideas to encourage innovation. The market itself will do that without the government's help. The government should only step in to stop the copying of new patentable products.

Posted by: pat agent at February 11, 2009 4:06 PM

pat agent,

And how do you suggest we qualify those who are innocent infringers who re-invented the invention?

You open a pandora's box like that and you might as well bury the patent office - "Honestly Judge, we make it a point to NEVER look at what else is patented...."

Your suggestion only creates more noise.

Posted by: Noise above Law at February 11, 2009 6:25 PM