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.
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.