| Abstrakt: |
Patent law is about creating economic incentives to innovate. It grants the inventors of new, non-obvious, and useful technologies time-limited market exclusivity over their inventions. The idea behind this mechanism is to make socially desirable inventive activity privately profitable. As long as the invention withstands the patentability criteria, the inventor’s contribution to technological progress is believed to justify the social costs associated with market exclusivity, such as premium prices, reduced variety, and deadweight losses. The Patent and Trademark Office (PTO) examines patent applications and decides whether the inventions in question fulfill these criteria. Yet, as several scholars note, today many registered patents embrace technologies that would likely fail to withstand the legal patentability requirements. Several factors make the PTO prone to issuing such “weak’ patents. Notwithstanding their doubtful validity, weak patents exert a significant market influence, allowing their owners to stop other firms from using similar technologies or to extract fees for such use. These practices impose significant costs on the public, without justification in terms of contribution to technological progress. Some fields of technology are overcrowded with patents, many of which are weak, creating significant risks and costs for productive firms. This has led Congress, courts, and scholars to seek solutions for reforming patent law, mainly focusing on improving the accuracy of the PTO examination and reducing the risks associated with patent infringement. This Article proposes an alternative way of coping with the phenomenon of weak patents. It identifies a basic flaw in patent law—the asymmetry of risk allocation. The system is predisposed in favor of patent holders and against alleged infringers. The considerable legal uncertainty associated with patent law affects parties to patent conflicts differently. When a firm uses a patented technology, or a similar one, neither the patent owner nor the user knows with certainty whether the patent is valid and whether the use is infringing. Yet, if a court finds the patent valid and the use infringing, the user will be liable for the damages inflicted upon the patent owner. In contrast, if the court finds the patent invalid or the use non-infringing, the patent owner will usually bear no liability for the damages inflicted upon the user and the public. This asymmetry gives much bargaining power to patent owners and invites opportunism. This Article proposes to reconsider the basic risk allocation in patent law and to introduce liability for damages caused by invalid patents. [ABSTRACT FROM AUTHOR] |
