A Few Kind Words for Absolute Infringement Liability in Patent Law

Abstract

I propose a partial defense of patent law’s absolute liability rule. This rule makes it irrelevant whether an infringement defendant copied from the patentee or independently invented the patented invention. I draw from two literatures to make my point. I look first to studies of how technological information is communicated or “diffused”. These studies, together with research by psychologists on “inadvertent copying”, demonstrate that ideas are sometimes copied in obscure and subtle ways, leaving little or no evidence that copying has indeed occurred. Next, I turn to the literature on optimal standards of care in tort law. I use it to describe what would happen if U.S. law changed to require patentees to show copying. Potential patent infringement defendants – a class that includes virtually all people and companies performing research and development (RD no copying, subtle or otherwise, takes place. In these cases, as the literature shows, absolute liability imposes significant costs. These costs must be weighed against the benefits of information freely shared under the current absolute liability regime. It is hard to say how the costs and benefit net out. Under these circumstances, a recent innovation in U.S. patent law, the new “prior commercial use” defense under the America Invents Act (AIA), may prove helpful. This defense permits one who can prove early commercialization of an invention to avoid liability even though he or she otherwise infringes. By rewarding an infringer’s early action, it cuts down on some of the costs of the absolute liability standard, while leaving that standard as the general rule in patent infringement cases. It is difficult to say whether this combination of (1) absolute liability, plus (2) an exception for early commercialization, provides the optimal set of incentives for potential patent infringers. But at least the prior commercial use rule encourages activity that has independent social value, in the form of rapid movement toward the market. Given that there are real benefits to the longstanding rule of absolute liability in patent law, this may be the best we can do.