A Few Kind Words for Absolute Infringement Liability in Patent Law

The goal of this Article is to partially defend patent law’s absolute liability rule. Most scholars question the utility of absolute liability, which makes it irrelevant whether an infringement defendant copied from the patentee or independently invented the patented invention. This Article draws from two literatures in making a defense. First, it looks to studies of how technological information is communicated or “diffused.” These studies, together with research by psychologists on “inadvertent copying,” demonstrate that ideas are sometimes copied in obscure and subtle ways, leaving little or no evidence that copying has indeed occurred. Next, the Article turns to the literature on optimal standards of care in tort law, which is used to describe what would happen if U.S. law changed to require patentees to show copying. Potential patent infringement defendants—a class that includes virtually all people and companies performing research and development—might well impose strict limitations on receipt of technological information. This would help rebut allegations of copying, reducing the risk of legal liability. Such strict limitations would stifle innovation because technological communities thrive on ubiquitous and unregulated communication. Patent law, as it stands, encourages communication by making proof of copying irrelevant in patent cases. As a consequence, researchers (as potential patent infringement defendants) currently have no reason to restrict their access to technical communications. To further support the case for absolute liability, this Article looks to both copyright law and common law rules on the theft of ideas. Both require proof of copying, and both have led potential defendants to invest in restrictive measures designed to prove that they had no access to third party ideas. By requiring only proof that the infringer is using an invention covered by the patentee’s claims, patent law dispenses with the need to prove that the infringer copied from the patentee. This means that researchers have very little incentive to protect against receipt of outside information. Potential infringers get no payoff from disproving contact with a patentee because the reduced incidence of copying that would follow from lack of DOI: http://dx.doi.org/10.15779/Z38285T © 2016 Robert P. Merges. † Wilson, Sonsini, Goodrich & Rosati Professor of Law, University of California, Berkeley, School of Law. Thanks to participants in Professor Rebecca Eisenberg’s IP Scholarship Seminar at the University of Michigan in 2012; to participants in the IP Scholars Conference at Berkeley in August, 2014; and, as always, to the excellent editorial assistance from the BTLJ editors and staff. I am absolutely liable for all remaining errors. 2 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 31:1 contact is irrelevant under patent law. No one invests in restricting contact, and information flows freely. The obvious downside of the current regime is that sometimes, an infringement defendant will really be a true independent inventor; no copying, subtle or otherwise, took place. In these cases, as the literature shows, absolute liability imposes significant costs. These costs must be weighed against the benefits of information freely shared under the current absolute liability regime. It is hard to say how the costs and benefit net out. Under these circumstances, a recent innovation in U.S. patent law, the new “prior commercial use” defense under the America Invents Act (AIA), may prove helpful. This defense permits one who can prove early commercialization of an invention to avoid liability, even though he or she otherwise infringes. Because commercialization before a patentee’s filing date will often be associated with independent invention, this rule reduces some of the costs of the absolute liability standard. It is difficult to say whether this combination of (1) absolute liability, plus (2) an exception for early commercialization, provides the optimal set of incentives for potential patent infringers. But at least the prior commercial use rule encourages activity that has independent social value, i.e., rapid introduction to the market. Given the real benefits to the longstanding rule of absolute liability in patent law, providing an exception under these circumstances makes for a reasonable policy.