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Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense

Defenders of patents commonly say they are against innovators’ ideas being “stolen” or “plagiarized.” This implies that patents simply permit an innovator to sue those who copy his idea. This position betrays either disingenuity or ignorance about patent law. Let me explain.

Under copyright law, someone who independently creates an original work similar to another author’s original work is not liable for copyright infringement, since the independent creation is not a reproduction of the other author’s work. Thus, for example, a copyright defendant can try to show he never had access to the other’s work, as a defense. The reason for this is that the fundamental copyright is, well, a right to copy one’s original creative work. By the nature of creative works that are subject to copyright, it is very unlikely someone would independently create the same novel, say, or painting, as another author. (And if copyright only protected literal copying, it would be much less a problem; but unfortunately it protects a bundle of rights including also the right to make “derivative works“.) But, in the rare case where author 2 independently creates a work very similar to that of author 1, it is not an infringement of author 1’s copyright, since author 2 did not copy anything.

Patent law is different. Very different. Most defenders of IP do not seem to be aware of this difference–one reason they should not be opining in favor of legal regimes they know little about. When patent defenders say that patent abolitionists are in favor of plagiarism and idea theft, they imply that patent law is like copyright law–that it simply prevents people from copying others’ ideas.

Not so. To prove copyright infringement you have to show an actual copying of the work. But to prove patent infringement, the patentee need only prove that the accused infringer makes, uses, sells, or offers to sell, or imports the patented invention–that is, a device or method that is described in at least one of the “claims” of the patent. It doesn’t matter if the infringer invented it independently. It doesn’t even matter if the infringer invented it before the patentee. Got that? Someone who previously invented the same thing and is using the idea in secret can actually be liable for infringing the patent granted to the second inventor. If a later person independently invents the same idea that was previously patented by another, this is also no defense. Prior use or independent invention are not a defense.

Obviously, it should be. The Intellectual Property and Communications Omnibus Reform Act of 1999 did add a limited first inventor (prior user) defense for prior commercial users of “business methods“–see 35 U.S.C. § 273–but not a general one. Justice obviously requires that, at the very least, a general independent inventor defense be added to the patent system. To blunt its sharp, unjust edges. In particular, a defense should be provided for those who are prior users of, or who independently invent, an invention patented by someone else. This would greatly reduce the cost of the patent system since one difficulty faced by companies is that they do not know what patents they might infringe. If someone learns of an invention from another’s patent, at least they are aware of the risk and can possibly approach the patentee for a license. But quite often a company independently comes up with various designs and processes while developing a product, which designs and processes had been previously patented by someone else. If the goal of patent law is to reward invention, it should be sufficient to permit patentees to sue people who actually learned of the idea from the patent—just as copyright infringement exists when someone reproduced another’s work but not when it is independently created. A broad prior user right defense should be established, as well as an independent inventor defense that even a later inventor could use. (Pending patent reform legislation originally proposed to broaden the existing prior user defense by eliminating the business method patent limitation so that users of all types of inventions would have been able to use the defense, but this was removed from later versions of the bill. The Council on Foreign Relations study, “Reforming the U.S. Patent System: Getting the Incentives Right,” recommends a prior-user right be adopted; James Bessen & Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (Princeton University Press, 2008), recommend an independent inventor defense–see the Introduction.)

Even pro-IP libertarians usually reluctantly agree that independent invention should be a defense, once you dispel their ignorance about the system they for some reason support (well, the reason is not that hard to see–it’s lingering state-indoctrination, or some form of statism such as minarchism, or some unprincipled, incoherent grounds like utilitarianism). This is one of the aspects of arguing IP policy that infuriates me. Whenever you point one of these things out to a libertarian defender of IP, he will usually say, “well, I don’t support that.” So you say, “well, what do you support?” The answer is basically, “Hey, I’m not a patent lawyer; that’s just a detail.” I.e., they are in favor of some ideal patent system; not the current, statist one (though they oppose abolishing it or weaking it!), but a “libertarian” one (as if one could imagine a patent system concocted by decentralized courts without legislative power! [on this see my Legislation and the Discovery of Law in a Free Society]). In other words, they don’t know what in the heck they are even talking about. They can’t describe the system they favor, and are not willing to abandon a statist system they admit is unjust.

And they seem blithely unaware that removing the obvious, “problematic” features of patent law would largely gut it, resulting in an emaciated, weak patent system–a change that would be attacked by mainstream IP advocates as “harming innovation,” in the same way that these libertarian patenteers criticize us patent abolitionists. Libertarian IP advocates are schizophrenic. They shy away from the obvious injustices of patent law, and would favor reforms that most normal IP proponents would recoil in horror from; while they try to maintain the facade that they support IP because they support innovation and inventors’ “rights”, even though they cannot tell you what their ideal libertarian patent system even looks like.

Don’t believe me that providing an (obviously just) “independent inventor” defense would gut the patent system? I’ve been practicing patent law since 1993. I have lost count of the number of times I’ve been called upon by a client to analyze a patent that has come to the client’s attention, that concerns it. What typically happens is this. Company A is producing or developing a product. They hear a rumour from a customer “Hey, I think that Company B has a patent on something similar to this.” Or, they get a letter from Company B saying, “Hi, we attach a copy of our latest patent for your interest! If you want to discuss licensing, give us a call! <smiley face! we’re all friends! it’s all good! Don’t file a declaratory judgment action against us, please! We wouldn’t want to give you cause to sue us first, robbing us of the chance to choose the venue! <double-smiley-face> Love, Company B”. So Company A calls me, says, “can you take a look at this patent? Are we in trouble? Are we infringing? Is the patent valid? If so, can we change our design to get around it? We’ll be happy to pay your $30k fee for an analysis and opinion.” Such a productive use of precious capital!

Now, what I want to emphasize here is that: in all the umpteen times I’ve done this over the last 15 or so years, I have never, ever, even once, seen a case where the client’s engineers copied the patented invention. In every case that I can recall, the company designed its product on its own–using available technology, to meet the market demands–and then only later were made aware of some patent buried among millions in the bowels of the patent office. Then they panic, worrying that they might be shut down by an injunction by a competitor, or sued into the ground (for examples see my Radical Patent Reform Is Not on the Way).

No doubt in some cases there is copying. An entrepreneur espies a popular product, and makes a similar one; lo and behold, it turns out there were some patents, and so he is sued. Still unjust–what is wrong with emulation, competition, and learning?!–but still, sure, in some cases, there is copying. But there can be no doubt that millions and millions of dollars are lost on attorneys’ fees alone, not to mention the cost of changing designs to avoid infringement, or foregoing development in a field crowded with patents or rife with uncertainty, in cases where the victim was not copying or even learning anything from the company that just happens to hold a red-ribbon adorned manilla certificate issued by a technocratic bureaucracy of the criminal central state. Add an independent inventor defense, and a lot of the work done by lawyers like me would dry up–meaning a more efficient economy, lower priced goods, more competition and innovation, more innovative freedom, more breathing room.

This is a type of reform that most libertarian patent advocates, in my experience, begrudgingly agree to. And it would gut the patent system. The caterwauling of the patent bar, deprived of half their federal law-sponsored teats, would reach a deafening crescendo. Large companies that rely on the inchoate threat of patent lawsuits to squelch competition and keep small innovators down, would increase their bribes to DC, fearful of barriers to entry falling.

So why not come all the way with us, my fellow libertarians? You see the injustices of the patent system, and usually agree with our concrete criticisms of them. You are not sure of what a good patent system would even look like. The current one is undeniably a mess. And it’s just an arbitrary fake-law scheme enacted by an obviously incompetent, evil, illegitimate, and criminal state. Why in the world would a libertarian support this? Besides, by advocating such reforms you are going to be lumped in with us “enemies of innovation” by the vested IP interests. So if you are doing the time, you might as well do the crime.

Update: See Mike Masnick’s excellent posts, Calling For An Independent Invention Defense In Patents and If Patents Are Supposed To Support The Independent Inventor, Why Isn’t There An Independent Invention Defense?, the latter of which mentions a great post by Joe Mullin, Patent defendants aren’t copycats. So who’s the real inventor here?

Update 2: Since writing this post, the America Invents Act (AIA) was enacted, which amended patent law to provide a broader “prior user right” than before, which goes some way to providing a type of independent invention defense, but not far enough (see my posts The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly and Prior User Rights and Patent Reform; also Tabarrok: Defending Independent Invention).

[Mises blog cross-post; AgainstMonopoly cross-post]

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{ 14 comments… add one }
  • Crosbie Fitch November 21, 2009, 11:21 am

    Do these defenders of patents who claim to be against others copying an inventor’s designs, understand the difference between copying and plagiarism?

    (Unethical copying, plagiarism:) Are they against one inventor falsely claiming to have invented something, when in truth, they copied the idea from another inventor?

    (Ethical copying, albeit contra-patent:) Or are they against anyone honestly copying a patented design from a product (reverse engineered) or patent filing?

    Or are they against both?

    Frankly, if people can recognise that a law against independent invention is unethical, then they should be able to recognise that a law against knowledge sharing or reverse engineering is unethical.

    Either a monopoly over the use of a design is a tolerable sacrifice of the public’s liberty in exchange for a brake on technological progress (diverting wealth to administrators, lawyers and monopoly holders) to enrich the aristocrats, the bellwethers of the nation’s industrial prosperity (the utilitarian argument), or it is simply a commercial privilege, unnatural and intolerable to a libertarian ethic.

    It’s a modern tactic (cf ACTA), to conflate the deceit of plagiarism or counterfeiting with copying in order to insinuate that instead of the deceit, it is the copying that is intrinsically dishonest – instead of an unwitting or laudable disobedience of an unethical state granted monopoly.

  • James November 21, 2009, 10:44 pm

    so what is the basic argument against IP in a nutshell? How do you protect someone who has spent 10 years developing something from being reproduced and sold at a lower price. Wouldn’t this kill innovation? I want to believe that IP is bad but I need a good reason.

  • Crosbie Fitch November 22, 2009, 4:35 am

    James, you seem to be asking “How do you ensure someone can exploit their investment in product design without any competition?” The answer’s obvious: grant them a monopoly for a few years.

    You need to appreciate that your question is unsound, otherwise you will continue to conclude that a monopoly is the obvious and inescapable answer.

    Incidentally, much to Stephan’s chagrin, I have no argument against IP, only against the privileges of monopolies granted to its inventors/registrants.

    The argument against monopoly is simply that individuals have a natural right to liberty that in an egalitarian society never warrants suspension (except in remedying rights violations by the individual, for protection or rehabilitation). The state can assume the power to grant monopolies, but no people, even via the US constitution, would empower their government to do so. The government is supposed to protect its people’s liberty, not carve chunks out of it for ‘commercial purposes’ on the pretext this is for the people’s own good.

    The patent system is strangling innovation, impeding technological progress, and you ask if removing it would kill it?

    The patent system is like the starter motor on a car. A naif might well suggest leaving it engaged continuously as an aid to the car’s engine and the vehicle’s progress. Unfortunately, as the battery quickly drains, the alternator/generator then acts as a brake on the engine to draw power for the starter motor. Ultimately, the car will drive more slowly and consume far more fuel. The naif still believes that disengaging the starter motor will remove what little motive power the vehicle has left and bring it to a stop.

    So, wake up, learn some economics, or better still thermodynamics, and realise that an expensive system that even if it spurred innovation instead of harnessing it, cannot represent a net benefit, but a net cost. It certainly benefits the people who can exploit the system, and those in a position to enact it for them, however, that isn’t ‘THE PEOPLE’.

    You have a natural exclusive right to your designs UNTIL you publish them. You may covet the privilege of a monopoly that simulates the continuation of your exclusive right, but to do so you must suspend the liberty of every other person on the planet, and in the case of independent invention, even interfere with the natural exclusive rights of other inventors. That is intolerable even for a day.

  • iawai November 22, 2009, 12:52 pm

    If you honestly believe that a lack of state IP monopoly would kill innovation, then you are at liberty to fund innovators.

    Instead of restricting the liberties of others, take it upon yourself to ensure that the proper actors are rewarded for innovations which you value. Buy only original works, boycott re-publishers, and start investment groups that fund first-innovators and creators. Using coercion on the general populace is never the solution to economically difficult situations, even though it is tempting to hoist the costs to “someone else” to see your values imparted on the world.

    To assume that a State actor will accurately identify innovations that are actually valuable in the marketplace, and will be able to cost effectively enforce a more or less one-size-fits-all monopoly solution is to concede the entire libertarian position of self-rule, bearing your own costs, and defining your own values.

    And all of this concedes that “IP law helps creation/innovation” for the sake of argument – that very premise alone is merely a myth created by the Anglo aristocracy worried about losing control of the dissemination of ideas to those with their own printing presses, or those who might invent new ways of mass-education (i.e. the independent invention of other printing devices). Queen Anne wasn’t worried about maximizing returns to all authors and publishers, but protecting those already established and favored by the throne from cheaper or better “copiers” of demonstratively more highly demanded free press products.

    I’ll grant the Patent and Copyright can be termed “property”, but it is not some distant lawgiver that can devise the regime by which the rights to that property can be defined, defended, or realized. Further, it should never be acceptable to limit the liberties of others beyond demanding non aggression, and independent invention/creation cannot be an aggression without (at least) showing an intent to usurp the creation of another in some fraudulent manner – either by claiming absolute originality to defraud a purchaser or by clandestinely gaining unpublished IP to undercut an original creator.

    From any angle of attack IP laws are vulnerable; I’ve yet to see any cited justification for them as any legal or economical analysis usually presupposes either that “creation need protection” and ask how to do it, or that some commons or public goods argument leads to some impasse in devising the “most efficient” solution, so (non sequitur) “the state” must step in to force this solution.

    Instead of asking “what might happen”, ask “why are we currently doing what we are doing?”

  • James November 22, 2009, 1:05 pm

    I do know economics better than the average person (thanks to Mises.org), and I was exposed to thermodynamics (from my chem minor at the university). I just never ventured into the IP corner because it’s intimidating and sometimes boring. But I’m slowly getting used to the ideas you were talking about Crosbi and if I can wrap my mind around it better, then I’d be happy to argue these points made on this site. Thanks.

  • IPAttorney November 25, 2009, 10:24 am

    I think the problem is not an independent invention defense, but the scope of the novelty requirement. Instead of having an independent invention defense (because that would make virtually all patents unenforceable), the lack-of-novelty defense should extend to the date which the application is published, and applicants should be able to elect to publish their application immediately upon filing. That way, there’s no 30 month gap where the invention was created 364 days ago, the app is filed now, and will be published in 18 months. That’s a 30 month window where the tech can be in the public eye and no one knows about any patents on it. In other words, the issue shouldn’t be independent invention, or first-to-file/first-to-invent. It should be first-to-publish.

    The statute would just need to be drafted to prevent a company’s international apps from precluding protection simply because one country published the app before/after another — use some “common inventor” language. Basically, the invention would lack novelty if anyone other than the inventor published or used the invention before the day the application was published. As long as the applicant gets to elect the day the application is published, the backlog instantly becomes irrelevant.

  • noiselull February 23, 2012, 6:08 pm

    The evil Tabarrok linked to this post!

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