Patent Infringement As Trespass

58 Pages Posted: 1 Sep 2017 Last revised: 2 Jun 2018

See all articles by Adam MacLeod

Adam MacLeod

St. Mary's University School of Law

Date Written: August 30, 2017


The now-conventional account of patent law holds that infringement is a strict liability offense, meaning that intent is not an element of an infringement claim. This account heightens the apparent injustice of patent law’s special knowledge problem, that as ambiguous descriptions of intangible resources, patent claims do not sufficiently make potential infringers aware of a patentee’s right to exclude. Particularly in the age of so-called “patent thickets,” clusters of patents of variable merit which are indistinguishable from each other and from prior art, strict liability for infringement seems rather hard.

These problems reflect a conceptual misunderstanding. When infringement is understood as a species of trespass, as it was long described in American law, the various aspects of infringement doctrine fall into place. Common law traditionally recognizes three forms of trespass. Together, those three forms explain all of infringement doctrine as a coherent whole and resolve the apparent injustices that seem problematic on the conventional account of infringement. The only aspect of infringement doctrine that does not fit the trespass picture is the four-factor interpretation of eBay, which is contrary to the Justices’ insistence in eBay that they were neither overturning patent infringement doctrine nor disturbing traditional equitable maxims.

Keywords: patents, patent infringement, trespass, intellectual property, property, property theory, intellectual property theory, property wrongs, eBay v. MercExchange, Hohfeld, jurisprudence

Suggested Citation

MacLeod, Adam, Patent Infringement As Trespass (August 30, 2017). Patent Infringement as Trespass, 69 Ala. L. Rev. 723 (2018), Available at SSRN:

Adam MacLeod (Contact Author)

St. Mary's University School of Law ( email )

One Camino Santa Maria St
San Antonio, TX 78228
United States

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