Digital Patent Infringement in an Era of 3D Printing

This Article provocatively asserts that lawmakers should weaken patents significantly—by between 25% and 50%. The primary impetus for this conclusion is the underappreciated effects of new and emerging technologies, including three-dimensional printing, synthetic biology, and cloud computing. These and other technologies are rapidly decreasing the costs of each stage of the innovation cycle: from basic research, through inventing and prototyping, to marketing and distribution. The primary economic theories supporting patent law hold that inventors and innovators need patents to recoup the costs associated with research, inventing, and commercializing. Because new technologies have begun—and will continue—to dramatically decrease these costs, the case for weakening patents is ripe for analysis.

Technological Forecasting and Social Change, 1996

The future for intellectual property law is ripe with possibilities. Even as the U.S. government passes legislation that will make it more difficult to exchange information, technology is rapidly transforming the way we think and use the objects of intellectual property law. This article outlines our probable future if we continue to pass laws that perpetuate our current intellectual property framew6rk. I also offer two possible alternative scenarios that highlight the assumptions made in order to make intellectual property law work.

Marquette intellectual property law review, 2007

INTRODUCTION I. APPLICABILITY OF U.S. PATENT INFRINGEMENT LAWS TO CORPORATIONS A. Current U.S. Patent Laws Deterring Unintentional Infringement B. Current U.S. Patent Laws Deterring Willful Infringement II. ANALYSIS OF INADEQUATE PROTECTIONS OF U.S. PATENT INFRINGEMENT LAWS TO PATENT OWNERS A. Inadequate Protections Afforded by Statutory Damages and Remedies to U.S. Patent Owners B. Inadequate Protections Afforded by the Read Factors Test to U.S. Patent Owners III. PROPOSAL FOR CHANGES TO CURRENT U.S. PATENT INFRINGEMENT LAWS FOR UNIVERSAL FEDERAL JUDICIAL ADOPTION CONCLUSION INTRODUCTION Corporations and businesses make important decisions every day that affect their financial viability and market image relative to other competitors in a particular industry. For those organizations that produce innovative technologies, the aggregate of the many decisions made throughout the various stages of development manifests itself through the final product presented to the marketplace or util...

IIC - International Review of Intellectual Property and Competition Law, 2014

Patent law seems to be at the very centre of the IP debate today. From time to time news about developments in patent law can even be found in the headlines. Not so long ago we witnessed a fiery debate over the landmark Court of Justice decision relating to the patentability of human stem cells. 1 This debate is far from over as new questions were referred to the Court of Justice for preliminary ruling. 2 Today we are carefully watching what will happen with the unitary patent protection in the EU. We are also awaiting the Court of Justice's decision in Huawei v. ZTE on FRAND defense in cases relating to standard essential patents. 3 In the meantime, however, while awaiting further developments in the pending cases as well as the ratification process, the author of this editorial intends to turn the reader's attention to a report entitled Patent Assertion and US Innovation. 4 The report was released in June 2013 by the US President's Council of Economic Advisers, the National Economic Council, and the Office of Science & Technology Policy. It is interesting for a number of reasons. First, the United States usually experiences many developments before these are experienced by other countries. Learning from that experience might be helpful to prepare for the developments that are also inevitable in the EU. Patent law is not an exception. Secondly, the report

Journal of Economic Perspectives, 2013

Innovation Policy and the Economy, 2006

Patents vary substantially in the degree of protection provided against unauthorized imitation. In this chapter we explore a range of work addressing the economic and policy implications of "weak" patentspatents that have a significant probability of being overturned or being circumvented relatively easilyon innovation and disclosure incentives, antitrust policy, and organizational incentives and entrepreneurial activity Weak patents cause firms to rely more heavily on secrecy. Thus, the competitive environment is characterized by private information about the extent of the innovator's know-how. In such an environment weak patents increase the likelihood of imitation and infringement, reduce the amount of knowledge publicly disclosed, and potentially reduce the incentives to innovate.

SSRN Electronic Journal, 2014

The core insight of this Article is that patent rights are not static and fixed, as they are commonly portrayed, but malleable. Commentators typically treat patent rights as if they are unchanging, frozen forever at the moment the patent issues. But patent law isn't so limited. Patent rights are surprisingly malleable: The scope and strength of the right can be changed even after the patent is issued through a surprisingly large array of mechanisms, allowing actors operating within the patent system the ability to change the very contours of individual patents. Malleability thus adds an important layer onto previous work recognizing that patent rights are uncertain: It is not merely that patent rights can involve something akin to a roll of the dice or an inability to definitively pin down their scope, but that the outcome of that roll or the contours of the uncertainty can be changed by the actions of the parties involved. This Article develops the concept of malleable rights, a new lens through which to view patents, and distinguishes the idea of malleable rights from that of probabilistic rights. Using this concept, the Article explores the ways in which patent rights are malleable and examines possible theoretical justifications for the malleability of patent rights, concluding that regardless of whether one accepts such justifications, recognizing the malleability of patent rights has profound consequences for discussions about emerging patent monetization strategies, for the patent system as a whole, and perhaps for views about rights over intangibles generally.

Journal of the European Economic Association, 2005

Patent protection has gradually expanded over time, and many patents of suspect value are routinely granted owing to the lack of rigorous scrutiny in the examination process. This has resulted in the recent explosion of patents granted and potentially creates a "patent thicket" that hinders future innovation. I investigate the question of whether the litigation process can be relied on to restore competition when an imperfect market outcome is sustained through patents of suspect value. The analysis undertaken in the paper points out the serious lack of private incentives to eliminate patents of suspect value through litigation. I also discuss potential measures to restore the soundness of the patent system. (JEL: O3, L1, L4, D8, K4) 1. See Kitch (1977) for an alternative view of the patent system. The "prospect theory" contends that a major function of the patent system is to maximize the efficiency to technological innovation by enabling the coordination of investments to innovation and eliminating duplicative efforts. 2. 35 U.S.C. Sections 102 and 103. These are called the novelty and the nonobviousness requirements, respectively. 3. The corresponding rates for Europe and Japan were 67% and 64%, respectively.

Vanderbilt law review

Recent appellate decisions reveal a chaotic contributory infringement doctrine that offers little direction to entrepreneurs trying to balance digital innovation with legal strictures. Aware of the problem, both the Supreme Court and legal scholars urge a modeling of contributory infringement on common law tort rules. But common law tort is an enormous subject. Without further instruction, the subject area is too vast and contradictory to offer a realistic template for reform. Even when the narrower body of tort law for secondary actors is consulted, there is still too much variation in the existing precedent to provide the necessary guidance. Instead of simply instructing the courts to consult tort law, we stress two specific reforms to make contributory infringement decisions more logical and predictable. First, tort law’s rules for causal analysis provide a significant resource for contributory infringement doctrine. The intuitive appeal of causal reasoning as well as its frequen...

Liberty University Law Review, 2023

Perhaps the only exception to the rule that every rule has its exceptions is the law of unintended consequences. An example may be found in the Supreme Court’s 2020 ruling in Allen v. Cooper. Seeking to protect the rights of states against the federal judiciary, the Court ruled that states are immune from suit in federal court for copyright infringement. As a consequence, the only courts with jurisdiction over copyright infringement cases were summarily closed to copyright owners who found themselves the victims of state piracy of their works. Copyright owners thus find themselves in a materially weakened position relative to state entities, and states find themselves with court-sanctioned impunity to violate copyrights. The robust right to a remedy at law for infringement of intellectual property rights has served to make intellectual property one of the most valuable components of United States commerce, enriching lives in the United States and around the world. If states can violate this right with impunity, the incentive to creativity envisioned by the Intellectual Property Clause will materially weaken, and “Science and useful Arts” will undoubtedly suffer. Necessity is, as they say, the mother of invention, and this Comment argues that the consequences of Allen constitute a necessity which must lead to the invention of a new remedy for copyright owners whose work is infringed by state entities. This Comment focuses on the prudential and policy arguments for using the author’s property interest in the tangible manifestations of a copyrighted work as a proxy for the copyrighted work itself in a new application of the Takings Clause of the Fifth Amendment to copyright. Prudentially, this proposal would remedy the problem by applying a legal theory sufficiently certain in its requirements and consistent in its application to make it workable. As to policy, this Comment would bring the practical outcomes of intellectual property litigation against states back into line with the policy goals of the Intellectual Property Clause, the Takings Clause, and the Copyright Act. This Comment thereby seeks to solve the problem caused by the unintended consequences of Allen and return to the robust intellectual policy protections envisioned by the Constitution and laws of the United States.