Another Good Patent Ruling: Standard For Willful Infringement Raised
from the courts-are-coming-to-their-senses dept
Just last week, we were talking about how the fear of being accused of "willful infringement" was once again distorting the purpose of the patent system. If you're found willfully infringing, rather than just accidentally infringing, the damages can be tripled. For that reason, many companies now have policies telling employees that they are not to search through patents, as any indication that they saw a specific patent could potentially be used as evidence of willful infringement. However, there is some good news on this front. The Against Monopoly blog points out that a new appeals court ruling has raised the bar on what is considered willful infringement to the point where the accuser must show "clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent." It's interesting to see this ruling come out of CAFC, the appeals court that handles patent cases. The Supreme Court has been slapping down CAFC decisions left and right lately, suggesting that it's unhappy with CAFC's previously lenient position on patents. Perhaps the folks at CAFC have gotten the message.
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The only thing left is to require due diligence for prior art as a condition of applying, so that "not searching through patents" is an illegal act in and of itself.
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due diligence
yes i remember as a wee boy (last week) being told that you had to do a thorough search and fully document your whole invention process in a special binder book and date everything.. oh and build a real working prototype, in order to even think about applying for a patent. wow...
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invfringement of a valid patent. so that also sets the precedent as a way to take down a patent that shouldn't be valid.
just wait for them to sue you, and have the court invalidate it.
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precedent to encourage it anyways
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This reminds me of Tengen!
http://en.wikipedia.org/wiki/10NES
The story goes that they basically stole IP to make their games work on the NES. This is the version that is repeated just about everywhere, which makes sense because that's what the court decided. But according to this interview with one of their actual programmers, http://www.atarihq.com/tsr/special/el/el.html , they recreated the chip from scratch. In the meantime one of their lawyers looked up the patent for the chip, without the programmers' knowledge, and that basically decided the case against them--even though the actual people who created the chip that went into the cartridges didn't know about the patent lookup until after they were done recreating it! I don't know if this falls under a violation for reverse engineering, but they didn't do quite what they were accused of.
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