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Masnick and Lemley-isms

By Lawrence B. Ebert, Esq.

In a post titled How Reporters Contribute To Misconceptions About Patent Lawsuits, Mike Masnick uses Joe Mullin as a cover for some previous fuzzy thinking by Lemley and Cotropia. Masnick should have at least credited Lemley and Cotropia for their idea.

Of course, the idea itself manifests a lack of understanding of patent law. Infringement of patent claims is a strict liability offense. It does not matter what the infringer thought or intended. Unless the patent owner is asserting willful infringement, there is simply no reason for the owner to assert the infringer "copied" the invention described in the claims. It's irrelevant. The question is simply: does the accused infringer's product or process fall within the scope of a claim of the asserted patent?

Nevertheless, Mike, not wanting to sound like the Harvard Business Review's "plagiarize with pride," tried to sugar-coat reality:

The truth is that it's very, very rare for a patent infringement lawsuit to actually involve a company that copied (or, as the patent system supporters would falsely claim, "stole") someone else's invention. Usually, it's about companies coming up with a similar offering independently.

Of course, "independent creation" is not a defense to infringement in US patent law.
It's irrelevant. Further, a lot of the "independent" creation in the IT industry arises because the bosses tell the researchers NOT to read patents. Nothing like re-discovering the wheel.

As is usually the case, Mike Masnick is clueless. Writing --patent lawsuits are almost never about the actual copying of inventions, despite what patent supporters and lazy reporters might tell you --, he should note that IPBiz is telling him that proof of "copying" is irrelevant. Further, patent law is designed to discourage people who disregard the published literature and "independently" create what already existed. The Masnick world is a wasteful world in which people are forever re-doing previous work.

Full post as published by IPBiz on February 22, 2009 (boomark / email).