A Minefield of Patents

Abstract

A patent grant should not impede further innovation, especially follow-on innovation. The goal of the patent system should be to prevent malicious imitation (infringement) of a granted patent, encourage legally controlled imitation, and handle with sensitivity perchance imitation made in ignorance of an existing patent. Indeed, perchance imitation should be used as an occasion to review the validity of the allegedly ‘infringed patent’ from the point of view of non-obviousness, especially if the patent has not been put into commercial practice. Luring people to infringe should be treated as a criminal act, more so if the patent turns out to be invalid. It should be the responsibility of a patentee to give wide publicity (say, via email to relevant industry associations, R&D organisations, prominent inventors, etc.), in a timely manner, to his patent in the community of people from where infringement is likely to occur. Further, courts should hold infringement hearings only after the extent of validity of the allegedly infringed patent is established by a statutorily established Patent Validation Board (PVB), comprising science, technology, engineering and mathematics (STEM) experts so that the public may know the precise legal limits of patent protection (including those available under the doctrine of equivalents) without recourse to judicial ruling. The decision of the Board related to patent validity should not be contestable in a court of law. A genuine perchance imitator should be given a free license to practice the patented invention to the extent the patented and imitation inventions are similar under the doctrine of equivalents (as certified by the PVB) subject to the condition that the perchance imitator would freely share improvements he makes on the perchance invention and puts in commerce, as trade secrets with the patentee for his commercial use during the term of the patent. The genuineness of the perchance imitation, if contested, should be decided by the courts.

Keywords: patent, patent claims, doctrine of equivalents, patent infringement, patent validation, fair use