Sunday, January 25, 2009

"How Juror Misconceptions Affect Patent Trials" [?]

Joe Mullin's How Juror Misconceptions Affect Patent Trials notes that proof of intentional copying is not an element of patent infringement BUT THEN makes a big deal that in most patent cases "formal allegations and findings of copying are actually quite rare." Duh? [Except of course in the dreaded willful infringement cases.]

The irrelevant observation about copying leads to the conclusion: It's overwhelmingly independent developers that are getting hit with patent lawsuits.

Yes, there's a Lemley in the woodpile.

The point of the patent system is to make information publicly available [make it patent, not latent] so people don't waste resources independently developing what's already been done. The patent system can punish re-discoverers of the wheel. People that re-do old work should be given incentives to do new work.

Lemley and Cotropia looked at about 200 recent patent infringement complaints, including cases where plaintiffs had prior business dealings with a defendant, or had trade secrets allegations along with their patent claims. They found only 11 percent contained even an allegation that the defendant had copied, either from the patent or from the plaintiff's commercial product.


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