Intent in Patent Infringement

Abstract

Response to Saurabh Vishnubhakat, An Intentional Tort Theory of Patents, 68 FLA. L. REV. 571 (2016).

In An Intentional Tort Theory of Patents, Professor Vishnubhakat makes two arguments. First, that liability for patent infringement should only be imposed upon defendants who intentionally make, use, or sell, patented inventions. And second, that if patent infringement includes such an intent requirement, it would no longer be a strict liability tort. This response agrees with the first thesis: patent infringement should require intentional conduct of a certain sort. However, the response disagrees with the second thesis: even if patent infringement requires such intent, liability would, in my view, still be “strict.”