Abstract:
The conventional account of patent law holds that patent infringement is a strict liability offense. That account is incomplete, as infringement law takes intention and even moral culpability into account for various purposes. A clearer picture of patent infringement law emerges when infringement is viewed as a species of trespass. Common law trespass operates differently in the reasoning of different audiences, for patents and other property present different facets to different audiences. Three such facets explain the three forms of infringement in patent law. Together, those three forms explain all of infringement law as a coherent whole, with one exception: a novel, controversial interpretation of the Supreme Court’s decision in eBay Inc v MercExchange LLC. That interpretation holds that in cases where the owner of an infringed patent requests a permanent injunction, the Court eschews traditional equitable considerations such as willfulness and culpability, and requires lower courts to use a formulaic, four-part test. That interpretation being only one plausible reading of the opinions in the case, inconsistent with the rest of patent infringement law, and not commended by any aspect of trespass law, is wrong. Other aspects of patent infringement are not foreclosed by any facet of trespass law, and are rendered intelligible by one or more facets, and in those areas any reasonable rule chosen by Congress should be treated as law.
MacLeod, Adam, Patent Infringement As Trespass (August 30, 2017). Alabama Law Review, volume 69, 2018, forthcoming.
First posted 2017-09-02 08:55:42
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