Yesterday, we ran a series of excerpts from responses to Senator Thom Tillis’ (R-NC) questions for the record to panelists following the June hearings on U.S. patent eligibility law, held by the Senate Judiciary Committee’s Subcommittee on Intellectual Property. Along with Tillis and Senator Richard Blumenthal (D-CT), Senator Mazie Hirono (D-HI) also posed several questions to the participants in the 101 hearings. Hirono’s questions overall demonstrate a good faith desire to get to the heart of the problems in search of real solutions.
The problem with not having an independent invention defense, according to Lemely, is that people who invent themselves couldn’t possibly find out about what others have invented because these inventions lay in unpublished patent applications at the Patent Office. “You have people who genuinely tried not to infringe,” Lemley said… While Professor Lemley is entitled to his opinion, and he is an excellent and formidable attorney that no one should ever take for granted, he is not entitled to his own facts. Deliberate disdain for patent property is a purposeful business model driving mega-tech IT incumbents. This business model is called “efficient infringement.” Efficient infringement is a cold-hearted business calculation whereby businesses decide it will be cheaper to steal patented technology than to license it and pay a fair royalty to the innovator, which they would do if they were genuinely trying not to infringe as Professor Lemley suggests.
In 2008 the surrogates did at least increase the emphasis on having some form of post grant challenge procedure in the bill that would pass Congress and be signed into law. Their work began to surface in March 2008 by way of surrogates speaking at public and private events focused on innovation related issues. While the campaigns today may not spend many bytes on patent policy soon enough surrogates will be convening at events around the country to discuss innovation policies. If innovation policies or broader tech issues matter the time to get involved is now. As the field of candidates continues to narrow it will become increasingly more difficult, and more costly, to influence policy.
Simply stated, Lemley is wrong and his suggestion that eBay v. MercExhange is at all positive, let alone the best development, strikes me as utterly ridiculous. The true mischief of the eBay decision isn’t that patent owners can’t obtain a permanent injunction, but rather that the Supreme Court has taken the threat of a permanent injunction off the table. This means that infringers have no incentive to deal. If infringers had to fear the possibility of a permanent injunction they would be forced to enter into meaningful arms length negotiations with patent owners. Instead, now infringers can merely say “sue me,” which is exactly what they do.
They found that citations were elevated for licensed patents. Moreover, most citations occurred after the patent was licensed. That licensing of patented technology increases its diffusion and relevance more broadly is supported by Drivas et al. (2014), who found that citations by non–licensees to patents exclusively licensed (either by geographic area or field of use) by the University of California increased after the licenses were executed. These are objective empirical indicia – not subjective responses of accused infringers to selective surveys.