City Research Online

Abstract

Accidental infringement of patents is a pervasive and growing problem. Accidental infringement occurs when a defendant uses a technology without awareness that the technology is subject to a patent. According to leading commentators the amount of accidental infringement today is “significant” and “serious.” Furthermore, the problem is getting worse as the USPTO grants ever more broad and vague patent claims.

This Article proposes a solution to the problem of accidental infringement. The Article recommends changing the liability rule in patent law. Patent law should be changed from a strict liability tort to a negligence-based tort. In accident cases, a defendant should only be liable for infringing the patent if she failed to take reasonable care to avoid patent infringement. Using the economics literature regarding accidents in tort law, the Article argues that the most efficient way to reduce accidental infringement is to adopt a negligence rule. Under a negligence rule, both the patent holder and the technology user would be incentivized to prevent patent accidents. To accomplish this reformation, the Article recommends introducing a “reasonable care” defense.

This solution stands as a middle ground between the two existing academic proposals regarding accidental infringement. Previous commentators have proposed either to retain strict liability or adopt an independent invention defense. The Article argues that a negligence rule is a more efficient solution than the prior proposals. In turn, this solution would alleviate some of the most pressing problems in contemporary patent law, such as the controversy of patent trolls and the problem of “notice failure.”

Publication Type:	Article
Publisher Keywords:	Patent; Infringement; Law & Economics; Tort
Subjects:	H Social Sciences > HB Economic Theory K Law
Departments:	The City Law School > Academic Programmes
SWORD Depositor:	Symplectic Administrator

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