Proximate Cause and Patent Law

Abstract

The U.S. Supreme Court’s WesternGeco LLC v. ION Geophysical Corp. decision provides the opportunity to open a policy space for proximate cause in patent litigation. As the country’s highest Court has pushed patent law, as well as other statutory torts, in the same direction as other civil causes of action, the full adoption of proximate cause in all monetary forms of recovery appears to be inevitable. At this time, a full adoption of this complex, multidimensional requirement will allow the patent system to resolve several troubling existing problems, including the appropriate extraterritorial reach of the system. Properly implemented, proximate cause in patent law can resolve other difficulties that are explored in this article. These include accounting for the social benefits of infringing implementations, the multiple serial plaintiff problem, and the problem of patent infringement actions brought against end-user consumers as some examples. As the patent system joins other civil causes of action in implementing proximate cause, it is likely that other problems can be implemented and resolved so long as the standard is modified to account for the unique policy problems of the patent system.