Infringement, Unbound

Abstract

Patents are intended to strike a delicate balance — to encourage innovation by rewarding past invention without unduly hindering future progress. In order to achieve this balance, patent rights are bounded by limitations on subject matter, term, and scope. Like fence posts, scholars tell us, these limits serve as important signals — to both the patent owner (staking her claim) and to “neighbors” (who can create without infringing, using the fence posts as a guide). But what happens if these carefully-drawn boundaries are later loosened by enforcement rules in unpredictable ways? At first glance, that appears to be what is happening in recent years. In response to sophisticated technology and a global cross-border marketplace, patent enforcement doctrines are changing. For example, courts and lawmakers sometimes relax application of the requirement that all elements of a claim must be met in the United States when the infringer is engaged in a cross-border act. And manufacturers and retailers may be held liable for the infringement of their customers as “indirect” infringers.

It is tempting, perhaps, to view these modern boundary-loosening enforcement rules as a risk to the delicate balance patent law seeks to maintain. This article argues, however, that the unbound infringement rules should be viewed not as a challenge to the balance but as a complement to it. Viewing the enforcement doctrines in this way — as a companion to the boundaries governing patent scope — reveals new insights on the would-be limiting principles that apply to unbound infringement. I argue that some of the patent infringement doctrines that allow for expanded liability beyond the normal bounds of patent enforcement are overbroad while others are overly strict. The key to reform, however, is that — like our understanding of the fence posts around the scope of the patent itself — patent enforcement rules must be moored to the same fundamental purposes that motivate the delicate balance patent law seeks in the first place.

Keywords: Patent law, Infringement, Indirect infringement, Cross-border infringement