Constructive Nonvolition in Patent Law and the Problem of Insufficient Thought Control

70 Pages Posted: 15 Feb 2007 Last revised: 27 Jun 2013

See all articles by Kevin Emerson Collins

Kevin Emerson Collins

Washington University in St. Louis - School of Law


Strict liability in patent law is too strict. A constructive-nonvolition exemption from liability for patent infringement must be recognized to prevent inefficient and unfair overprotection of patentable inventions.

Although loosely modeled on the nonvolitional conduct exemption in other strict liability regimes, constructive nonvolition does not turn solely on the defendant's lack of physiological control over his body. It focuses more broadly on the cost that a defendant must incur in order to either avoid infringing a patent or reduce the benefit that he receives from using the patented technology. If a defendant must avoid using either prior art technology or technology entirely unrelated to the patented technology in order to avoid using or benefiting from a validly patented technology, then the defendant's deliberate act of using of the patented technology should be deemed constructively nonvolitional, i.e. legally equivalent to a nonvolitional act. If the defendant's non-infringing choice set is constrained in this manner, then a strict liability regime strictly construed that allows the patentee to control all uses of a patented technology results in patent protection that is both inefficient and unfair.

Having laid out the analytical framework, this article brings the newly minted concept of constructive nonvolition to bear on claims that recite inventive, reflexive acts of thinking. The patent claim that was recently at issue before the Supreme Court in Laboratory Corp. v. Metabolite Laboratories demonstrates that the PTO allows inventors to propertize simple acts of human reasoning that the public of thinkers cannot control. This article argues that the patentee in Laboratory Corp. was the beneficiary of economically and constitutionally overbroad patent protection because the lower courts failed to implement a constructive-nonvolition exemption from strict liability for patent infringement.

Suggested Citation

Collins, Kevin Emerson, Constructive Nonvolition in Patent Law and the Problem of Insufficient Thought Control. 2007 Wis. L. Rev. 759 (2007); Indiana Legal Studies Research Paper No. 65. Available at SSRN:

Kevin Emerson Collins (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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