If Patents Are Supposed To Support The Independent Inventor, Why Isn't There An Independent Invention Defense?

from the copycats dept

Joe Mullin has written up an interesting post, talking about how almost no patent infringement lawsuits involve accusations that one firm specifically "copied" the other. Traditionally, of course, if you think about intellectual property or the way most people view intellectual property -- and you hear that someone's been accused of patent infringement, their first thought is that the invention was "copied" or (as some incorrectly claim) "stolen." Yet, the evidence suggests that this is rarely, if ever, the case. Outside of the pharmaceutical industry, you almost never see accusations of outright copying -- even though there is some incentive for the accuser to bring that up in court (both to influence the jury and to make something of a case for willful infringement). Now, as the post and the comments show, there's not a direct correlation between "copying" and "willful infringement," so not every case needs to show direct copying -- but you would think that such evidence would make the overall case stronger (especially in front of a jury). Yet, it almost never happens.

And that, of course, highlights one of our biggest concerns about the patent system. It's the total lack of an independent invention defense. In fact, I still contend that if you can show multiple people invented the same thing, independently, around the same time, you've established a pretty clear case that the concept is obvious to a person skilled in the art -- and thus, unpatentable. Unfortunately, this argument is rarely used in court (though, sometimes...).

I always find it amusing, however, when the strong patent system defenders rush into the comments and automatically accuse any accused infringer of "theft" and "destroying the small independent inventor." That's because they never have an answer for the "theft" and the "destruction" of the independent inventor (or, more likely, inventors) who came up with the invention entirely independently, but are totally barred from using the invention without purchasing a license. That seems like a much bigger "theft" both to those other independent inventors and to the rest of the world, who is left with a single monopolist provider.

Filed Under: independent inventor, patents