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Howdy Pierce

More on Patents

March 4th, 2010 by Howdy Pierce

I had intended to give the indemnification issue a rest.  But then the following caught my attention this morning:

One big difference between patents and other kinds of intellectual property, like copyrights and trademarks, is that patent-holders who want to sue someone for infringement don’t have to show that their patents or their products were actually copied by the defendant. In fact, the issue of copying is legally irrelevant when determining whether or not someone infringed a patent. (It is relevant to willfulness—more on that below.) The flip side of that rule is that a defendant company can have a really nice story about they did their own research, invention, and development—but it doesn’t matter one bit, legally speaking. Such “independent invention” stories are no defense.

“No one seems to know whether patent infringement defendants are in fact unscrupulous copyists or independent developers,” writes Lemley. So he and his partner went on a hunt looking for copycats in patent disputes. How much copying did they find? Not much at all.

(Joe Mullin’s whole post is excellent; thanks to Brad Feld for calling attention to it.)

Which underscores my earlier point: Patent lawsuits don’t usually arise because of unethical behavior on the part of the engineering team. And therefore offering indemnity protection against these kinds of cases is not a financial risk that we can or should bear.

I’m not primarily out to agitate for reform of the patent system, but I agree with calls for adding an independent innovation defense. Such a reform would help swing the effect of the patent system back toward its original intention, which was to encourage innovation.

Howdy Pierce is a managing partner of Cardinal Peak with a technical background in multimedia systems, software engineering and operating systems.

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One Response to “More on Patents”

#8862 | March 17th, 2010 | Herb Glum

I think that you may have missed the underlying reason for having patents and the way patents are used to protect proerty rights. Lemley’s position that no one knows whether infringement defendants are copyists seems poorly supported, especially when a very high number of infringement complaints accuse the infringer of willful infringement. You might consider that most patent litigation takes place only after an accused infringer either refuses to end the infringing acts or completely stonewalls the patent holder’s efforts to resolve the infringement. It is like not paying your speeding ticket. If you ignore it for long enough you can bet that you will eventually be hauled before a court. Also, your suggestion that so called “independent innovation” should be a defense makes about as much sense as squatter’s rights and ignorance of the law defenses. You can’t get out of a speeding ticket by arguing that you didn’t know what the speed limit was, even if you really didn’t. You can’t just move into a vacant house without paying rent simply because nobody is using it. It is every citizen’s duty to know and abide by the law. This is especially true when you breaking the law and are warned to stop. Patents are property rights, just like the deed to a house. Deeds and patents give the owner certain legal rights, including the right to excluse others from using the property without the owner’s permission.

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