

In most patent lawsuits, the defendant invented independently [pdf] - hadronzoo
http://www.law.berkeley.edu/files/Lemley_Copying-in-Patent-Law1.pdf

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Symmetry
Not to defend the patent system too much, my experience with it mostly
involves a second parties trying to patent ideas that others came up with, but
there seems to be a bit of a selection effect problem here. Of all the people
who consider copying something patented, some fraction of them are stopped by
the presence of the patent. Of all the people who independently invent
something you would expect only a very small percentage to be stopped by a
patent. Also, someone who knowingly copies someone else's work knows to hide
the fact.

So unless we know what percentage of people were stopped from copying someone
else's work without the need for a lawsuit, this study alone doesn't tell us
very much about the social costs and benefits of patents by itself. I tend to
believe that our patent system is too strong and I might very well mention it
in discussions with proper caveats, but we need more research.

~~~
akeefer
This research doesn't tell you much concretely about the _benefits_ of the
patent system that might be lost in any potential reform, but it certainly
says something about the _costs_ that it imposes right now: clearly lots of
people get sued over things they invented independently. In fact, in the
overwhelming majority of cases not involving chemicals or pharmaceuticals, the
people being sued (and thus punished) are independent inventors. It's hard for
me not to conceive of "people getting sued over things they invented/created
completely independently" as anything other than a pure cost to society, and
the research in this paper makes it pretty clear that most patent lawsuits
fall into that category of "pure cost to society."

It also does say something about the "benefits" of the patent system, though
less strongly: clearly if the vast majority of people being sued in particular
industries are independently inventing things, that means that the knowledge
transfer benefits of patents in those industries is likely over-stated by pro-
patent lobbies.

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kljensen
In the eyes of the (US) law, independent invention is no excuse for
infringement. The patent holder has an absolute right to exclude others from
practicing the invention.

In other words, in the race to invent and patent, first place gets a big
prize, second place is the first loser.

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andrewkitchell
Kevin Kelly's take on the idea of simultaneous discovery. Good writing/lots of
research: <http://www.kk.org/thetechnium/>

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sili
Is the title statement taken from their argument in section "Data on
Allegations of Willfulness" where they propose that since in 70% of the cases
patent holders did not notify defendants of the patent violation than it is
safe to assume that the defendants did not know they were violating a patent?
That seems like a faulty logic to me.

~~~
akeefer
No, it's based on their extensive analysis of the cases and all documentation
associated with those cases that tries to discern if there are even mere
_allegations_ by the plaintiff that the patent infringement was due to any
manner of copying. Their stats show that, aside from pharmaceutical or
chemical patents, the number of patent cases in which copying is even alleged
at any point is very small (i.e. a few percentage points).

One could argue that perhaps that low incidence is simply due to people not
bothering to allege copying since it isn't relevant to if infringement
occurred. The authors suppose that that's unlikely, since copying is highly
relevant to the question of whether or not willful infringement occurs, and
their limited evidence suggests that findings of copying do in fact tend to
lead to findings of willful infringement. To test that hypothesis, they
gathered up an additional 102 cases where evidence of copying was found and
found that in nearly 2/3 of them copying was alleged by the plaintiff. (pp.
28-29 in the pdf). That would seem to be fairly strong evidence that if a
plaintiff has actual evidence of copying they're highly likely to allege
copying somewhere in their complaint.

Thus, it's a reasonable conclusion that since only 10% overall of patent
litigations involve even allegations of copying (and far fewer for anything
outside of pharma or chemical patents), that most cases where there's actual
evidence of copying result in such allegations, and that allegations
themselves are merely an upper bound on actual copying (since the allegations
may well be untrue), that there's actually not much copying going on, which
means that most of the inventions being sued over were produced independently
rather than through any kind of "copying" or "theft."

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tbrownaw
So why can't the FDA just _not grant_ those special copying-based expedited
approvals for the first X years after approving whatever's being copied,
rather than the copying being evidence that we need to keep a patent system?

