EFF's Defend Innovation Project: Analysis (Part 4)

Infringers should avoid liability if they independently arrive at the patented invention

The Problem:  "Patent liability is strict liability. This means that all a patent holder must do is show that a defendant practices its invention, not that the defendant had any intention to infringe, or even any knowledge that the patent existed. The law, in its current form, allows trolls to target anyone who allegedly infringes."

The Solution:  "Congress should pass a law letting alleged infringers avoid liability when they can show that they independently arrived at the invention they practice. If inventors can’t understand a patent, then they, as a matter of logic, cannot copy it. Likewise, if inventors don’t know about a patent, they cannot copy it. An innocent infringer defense would protect those inventors and, consequently, shut down a major revenue stream for the trolls."

(source)

  When I first read this proposal, it seemed like a loophole waiting to happen.  Having given it a day's thought, I see now that it all depends on where the burden of proof is placed, similar to many self defense laws.  Each side of that coin has it's own intrinsic issues, but I'll get to that in a moment.  At the end of the day, it is very difficult to prove that somebody else knows something, and likewise it is difficult to prove that you are ignorant of something.

  If the burden of proof is placed on the claimant, even gathering the necessary evidence and testimony would be a nightmare.  The Fifth Amendment gives protection against self-incrimination, which essentially boils down to the fact that a witness cannot be forced to testify or produce evidence unless the prosecution already has knowledge of the evidence in question.  However, if the evidence in question is wholly contained within the memory of a defendant, the prosecution would essentially have to prove that the defendant has the knowledge in order to gather the evidence and testimony necessary to prove that the defendant has the knowledge.  This could promote a "Culture of Blindness", in which it becomes advantageous to encourage ignorance of patents that relate to your work, since that knowledge could one day be used in a suit against you.

  If the burden is placed on the defendant, however, it becomes a My-Word-Against-Yours situation, since what sort of evidence could possibly exist that proves you did not know of the patent in question?  How could a defendant ever hope to account for every bit of knowledge he or she has, and hope to prove that this knowledge does not relate to the patent?  It would be easy enough to conduct cursory patent research that deliberately avoids anything that could possibly be infringed upon, and to document a few memos to the effect of "No patent was found that would cover the ideas / inventions we wish to pursue."  There are millions upon millions of patents out there - nobody could ever hope to check them all.  This leads to a nearly trivial establishment of reasonable doubt.

  I can't say what would fix this proposal; I really don't know.  I will be interested to hear the feedback the EFF gets on it, and to see it in final form when it's shipped off to Washington.

Next: Patents and licenses should be public right away.  Patent owners should be required to keep their public records up-to-date