Independent Invention as a Defense to Patent Infringement
25 Pages Posted: 23 May 2006
Abstract
Under current law, independent invention is no defense to patent infringement. This Article argues that independent invention should be a defense, provided the independent inventor creates the invention before receiving actual or constructive notice that someone else already created it. The defense reduces wasteful duplication of effort and enhances dissemination of inventions without lowering the incentive to invent below the necessary minimum. To be sure, the defense lowers the incentive for inventions that face significant odds of being invented by more than one inventor. By enabling a second inventor to compete with a first inventor, the defense essentially breaks up the first inventor's patent monopoly into a duopoly. Monopoly profits exceed the collective profits of duopoly. Thus, from the perspective of inventors ex ante the defense reduces the expected profit for inventions that could be invented by more than one inventor. This Article argues, however, that the reduction in expected profit is moderate and that the reduced expected profit is generally sufficient. Per Bayes' theorem, the fact that an invention could be invented by more than one inventor is itself evidence that a moderately reduced expected profit will still motivate at least one inventor to create the invention without inefficient delay.
Keywords: patent, invention, intellectual property, prior user, innovation, rent dissipation, rent seeking, monopoly loss
JEL Classification: O31, O34, D42, L12
Suggested Citation: Suggested Citation
Do you have negative results from your research you’d like to share?
Recommended Papers
-
Profit Neutrality in Licensing: The Boundary between Antitrust Law and Patent Law
-
Profit Neutrality in Licensing: The Boundary between Antitrust Law and Patent Law
-
Patent Reform: Aligning Reward and Contribution
By Carl Shapiro
-
Scarcity of Ideas and R&D Options: Use it, Lose it or Bank it
By Nisvan Erkal and Suzanne Scotchmer
-
The Decision to Patent, Cumulative Innovation, and Optimal Policy
By Nisvan Erkal
-
Scarcity of Ideas and R&D Options: Use It, Lose It, or Bank It
By Nisvan Erkal and Suzanne Scotchmer