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Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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Copypats

In Patent defendants aren't copycats. So who's the real inventor here?, a great post by IP Reporter Joe Mullin, Mullin describes a new study that shows that most defendants in patent cases are never even accused of copying the plaintiff's patent.

I replied:

Joe,

Great post. A few comments.

First, you're right that the public thinks it's about copying; and they are wrong. Likewise, most proponents of IP (outside the self-serving patent bar) seem to have no idea about the details of patent law, yet support it anyway.

Second, the reason copying is not alleged is that, as you note, it's irrelevant. And it does not demonstrate willfulness, nor does willfulness require copying. Willfulness means you made a product that infringed on a patent, even after you knew about the patent. But this could happen even if you independently invented your product yourself, then find out about the patent (say, you get a C&D letter), adn you keep selling your product anyway--you're willfully infringing from that point on (so that means damages can be trebled for sales made while willfully infringing). So, copying is not necessary to show willful infringement.

It's also not sufficient. You might have heard about pinch-gestures on a touchscreen and you put that feature in your product, thus infringing apple's patents, albeit unwillfully, since you didn't know about the patents.

So, I don't think you can conclude that most patent suits don't involve copying just b/c copying is not alleged or proven at trial. There might be copying in 25% of the cases, but it's only alleged 2% o the time, say. This is b/c when you sue someone for infringement you have to show (a) you have a patent; (b) they are selling a product that contains all of the describd elements in one of the patent's claims. Copying is irrelevant.

(Still, I agree that copying is probably present in only a small minority of all patent infringement cases.)

Third: your article makes it clear that it's unjust that there is no independent inventor exception. Your piece does not mention, I think, the fact that the worst injustice of all is that not only is there not an exception for someone (A) who later independently invents the same thing that B invented first and patented first--there is not an exception even if A FIRST invented it. (It's true that if A invents first and B invents second, and if B files for a patent, then A later files for one, then A wins, in an interference battle or litigation; but if A never files but sells his product using a secret process, say, then after a year he is barred from filing a patent; but B is not.) So if A has a chemical plant using a trade secreted nozzle or mixing method to make some chemical for 50 years, and finally B independently invents the same technique and patents it, he can shut down A even though A invented it first. A general "prior use" defense is what is needed in these cases.

But the prior user defense and independent inventor defense are of limited value for a few reasons. 1. It's hard to prove, esp. for later invention, that you invented it independently, without being influenced by B's patent (which is public, and presumed to be "constructively known" by all); which is why some companies employ the "clean room" approach, but this is expensive and not usually feasible.

2. Once you know about B's patent, you are now unable to invent it on your own, even if you "would have" in the absence of B's patent. I.e., the independent inventor exception largely evaporates soon after a successful product (such as the iPhone's multi-touch) because by then everyone is "contaminated" by it (no cleanroom possible any more).

3. If B invents and patents something, and if A also invents it (earlier or later than B), then this by itself ought to show that the invention was probably obvious (an idea whose time had come) and B's patent should be invalid in general, not just a defense for A.


Comments

Stephan:

Thanks for your thoughtful response.

You wrote: I don't think you can conclude that most patent suits don't involve copying just b/c copying is not alleged or proven at trial. There might be copying in 25% of the cases, but it's only alleged 2% o the time, say. This is b/c when you sue someone for infringement you have to show (a) you have a patent; (b) they are selling a product that contains all of the describd elements in one of the patent's claims. Copying is irrelevant.

(Still, I agree that copying is probably present in only a small minority of all patent infringement cases.) -----

If I understand you right, you are saying that you believe there are copying allegations and findings that the study missed that while only a small minority of patent cases have copying allegations/findings, it is higher than the extremely low rate of copying they found in tech cases.

It's certainly possible some cases did include copying allegations or findings but those were missed by the study. When I talked to Lemley about his work he acknowledged that possibility. But do you disagree with the point that plaintiffs have a strong incentive to present any copying evidence they might find? If nothing else, it looks terrible to a jury, something I get into in my article.

You might want to look at the paper itself, linked on my post; I would certainly be interested to hear your thoughts on it. Lemley & Cotropia used some other methods to check for allegations of copying that I didn't get into, including searching almost 1,900 published opinions in patent cases. Using that method, they found only 129 cases (6.89%) that mentioned an allegation of copying even lower than the 10.9% rate they found looking at complaints. And again, a majority of those cases were ANDA (pharma v. generic) litigation. Copying was found in just over 1 percent of these decisions. (Remove ANDA cases, and it's less than half a percent.) This is all from pages 35-37 of the study.

But I see your point. The patent trial I watched in Texas included some evidence that the plaintiff said showed copying (an internal report on competitors by the defendant company, compiled at a trade show.) I don't think that report which was shown to the jury was mentioned in either the original or amended complaints.

So, the methodology is not water-tight. But still ... the numbers seem really low.

----- You write: The prior user defense and independent inventor defense are of limited value for a few reasons. 1. It's hard to prove, esp. for later invention, that you invented it independently, without being influenced by B's patent (which is public, and presumed to be "constructively known" by all); which is why some companies employ the "clean room" approach, but this is expensive and not usually feasible. -----

It might be hard to win on summary judgment, but I sure think that allowing those defenses would change the dynamics of a jury trial. If defendants were able to tell a story about their own research, invention, and product development and judges told juries that if they believe the independent invention story, they must exonerate the defendants wouldn't that make life harder for many plaintiffs? Especially the "trolls" that are only in the lawsuit business? Defendants could say "We never heard of this guy until he sued us" and it would mean something.

To me, it's telling that even under current law, independent invention stories are told by defendants to appear sympathetic to juries even though jurors are told those stories have no legal weight. (I get more into what juries think in my story).

You bring up the example of Apple's touch-screen patents. Now sure, if Apple filed a patent infringement lawsuit against its competitors, it could say "We were the innovator, we were first, everyone imitated us whether they admit it or not." Apple could wave its inventions around in a courtroom and threaten its competitors. But it's quite telling that Apple hasn't actually done so (at least, not yet).

But Apple is involved in litigation over touch-screen patents as is every single one of its competitors -- as defendants. They're fighting multiple lawsuits brought by independent inventors, patent-holding companies, and once-upon-a-time-companies.

I did a few quick searches and found not one, but four lawsuits in the past year involving "touch-screen" patents for mobile phones; three of the four named Apple as a defendant. (One patent-holder who didn't named every other cell phone co.; I suspect there was an attorney conflict that prevented him from suing Apple.) So, again I would ask -- who's the real inventor here?


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