Patent law gives patent owners not just the right to prevent others fromcopying their ideas, but the power to control the use of their idea even bythose who independently develop a technology with no knowledge of thepatent or the patentee. In an important paper, Samson Vermont challengesthis received wisdom, arguing that independent invention should be adefense to patent infringement, just as it would be in copyright or tradesecret cases.Independent invention has much to recommend it. The most significantproblem facing the patent system today is the rise of so-called "patenttrolls" - entities who do not manufacture products or transfer technology,but wait and assert patents against successful companies who independentlydeveloped and manufactured the technology without knowledge of the patent.An independent invention defense would eliminate the troll problem in onefell swoop. Nonetheless, I have concerns. While I agree with Vermont thatwe can learn a great deal from the fact of independent invention, I am notyet persuaded that we can be sure that an independent invention defensewill have no undue effect on incentives. Complicating this difficultempirical question is the likelihood that the effects of an independentinvention defense would be different in different industries. Further, anindependent invention defense will significantly change any market forpatent rights that might exist or be developing today.In light of this, I suggest four steps we might take that take advantage ofVermont's insights without moving all the way to an independent inventionsystem. First, we should change the definition of willful infringement toexclude independent inventors. Second, we should adopt some form of a prioruser right. Third, we should give simultaneous invention greater credencein determining whether inventions are obvious. Finally, we might considerwhether the defendant independently invented as a factor in decidingwhether to grant injunctive relief and the conditions to impose on suchrelief.
The 'Right' to Injunctive Relief for Patent Infringement