Patent Fair Use 2.0
UC Irvine Law Review, 2011
53 Pages Posted: 10 May 2011 Last revised: 3 Jan 2015
Date Written: May 7, 2011
It is time to update the idea of “patent fair use” to account for the evolution of technology and of inventive paradigms in the years since O’Rourke’s seminal proposal in 2000. A fair-use-type ex post approach to cabining patent exclusivity is even more attractive as a theoretical matter now than it was in 2000. In this article I propose and justify a set of “patent fair use 2.0” factors: 1) Is there a “justifiable” failure to purchase or license? 2) Did the infringer make a substantial improvement over the patentee’s invention and was there some reason for blocking patent failure? 3) Does the availability of alternative innovation paradigms in the technological arena provide evidence of reduced importance of patent incentives? 4) Was the infringer a knowing copyist, independent inventor, or something in between? If the infringer was not a knowing copyist was her failure to locate the patent through search reasonable in light of patent search costs in the particular technology, custom in the industry, the foreseeability of infringement, and the infringer’s commercial, non-commercial, or small entity status?
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