Brian J. Love

Interring the Pioneer Invention Doctrine

Brian J. Love — Wed, 06 Apr 2011 12:35:43 PDT

This article provides the first comprehensive analysis of patent law’s “pioneer invention doctrine” in almost two decades. Since the early 1990s, patent scholars have unanimously reported that case law favoring so-called “pioneer” patents – i.e., those disclosing the most revolutionary inventions – is dead letter. Accordingly, most scholars have ignored the pioneer doctrine entirely. Those few who have studied it, have consistently argued that the doctrine ought to be raised from the dead and reintroduced to patent law. In this article, I refute scholarly consensus on both points. First, my empirical results show that the pioneer doctrine is very much good law, especially at the district court level where it is routinely applied. In fact, I find that the pioneer doctrine actually arises in litigation just as frequently as other issues that receive substantial scholarly attention. Second, I argue that the pioneer doctrine should now be excised from patent law once and for all, rather than returned to a place of prominence. Reviewing patent doctrine, I show that pioneer inventors receive generous patent rights without further assistance. Turning next to the history of innovation, I argue that truly pioneering inventions do not exist. Despite the notoriety of inventors like Edison and Bell, a close reading of history shows that virtually all “pioneer” inventions were independently and contemporaneously invented by multiple groups working to solve the same known problems. Finally, presenting case studies from various industries, I show that dominant pioneer patent rights generally stifle rather than promote innovation because they significantly discourage investment in the development of next generation technology.

The Misuse of Reasonable Royalty Damages as a Patent Infringement Deterrent

Brian J. Love — Wed, 11 Mar 2009 06:23:15 PDT

This Article studies the Federal Circuit’s use of excessive reasonable royalty awards as a patent infringement deterrent. I argue against this practice, explaining that properly viewed in context of the patent system as a whole, distorting the reasonable royalty measure of damages is an unnecessary and ineffective means of ensuring an optimal level of reward for inventors and deterrence for infringers. First, I introduce cases in which the Federal Circuit and other courts following its lead have awarded punitive reasonable royalty awards and explain the Federal Circuit’s professed rationale for doing so. Next, I demonstrate that this practice makes little sense, given the number of other powerful deterrents already present in the patent system. I also explain that any additional deterrence-related benefits attributable to excess damages are not realized when courts impose those damages against innocent infringers—a group that likely makes up the lion share of patent infringers. I further explain that there is good reason to believe that the patent system already over-deters infringement without the added burden of inflated royalties, because accused infringers participating in a competitive market face strong incentives not to challenge patents asserted against them. Finally, I propose several patent reforms for efficiently deterring deliberate copyists, while sparing innocent infringers from that threat.

Patentee Overcompensation and the Entire Market Value Rule

Brian J. Love — Thu, 01 Mar 2007 22:43:01 PST

This article studies the “entire market value rule,” a U.S. patent law doctrine that, when applied, allows the owner of a component invention to capture the entire value of a larger infringing product that unlawfully incorporates its invention. I argue that the entire market value rule systematically results in the overcompensation of patent owners relative to their inventive contributions to society. First, I examine the current state of entire market value rule case law. I track the doctrine’s evolution over time and explain that, from its modest origins, the doctrine has been expanded far beyond the rationales that led to its creation. Second, I present the case for modifying the entire market value rule. I introduce an economic model that demonstrates the doctrine’s overcompensating effect and also address the negative consequences that result when patent rights are overvalued. Third, using a hypothetical infringing personal computer system as a case study, I explore how the entire market value rule will likely be applied in future patent litigation involving complex electronic devices. Finally, I suggest patent reform measures to counteract the doctrine’s overapplication and the problems caused by the overvaluation of patented inventions.