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The Angel is in the Big Picture: A Response to Lemley

11 Pages Posted: 10 Jan 2007  

Samson Vermont

University of Miami - School of Law; Charlotte School of Law


Under current law, independent invention is no defense to patent infringement. In another paper, the author proposes that independent invention be recognized as such a defense. Mark Lemley, in his Comment about that paper, expresses three reservations concerning the author's proposed reform and also suggests four alternative reforms that are less ambitious than the author's. The instant paper responds to Lemley's Comment, conceding that two of his reservations are more or less valid and that two of his alternative reforms are viable. More work is needed to determine whether either of these alternative reforms is superior to the author's proposed reform. Which reform is superior depends ultimately on the extent to which independent invention is a function of forces exogenous to the patent system.

Keywords: patent, invention, inventor, prior user, independent invention, patent infringement, independent inventor

JEL Classification: O31, O34

Suggested Citation

Vermont, Samson, The Angel is in the Big Picture: A Response to Lemley. Michigan Law Review, Vol. 105, No. 7, pp. 1537-1544, May 2007; George Mason Law & Economics Research Paper No. 07-02. Available at SSRN:

Samson Vermont (Contact Author)

University of Miami - School of Law ( email )

Miami, FL
United States

Charlotte School of Law


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