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February 24, 2012
Alex Tabarrok has an interesting post on the idea of patent protection for "independent invention". This would be for cases when two people or organizations independently arrive at the same thing:
In the minds of the public someone who infringes a patent is like a plagiarist or a thief–the infringer has copied someone else’s work or, even worse, stolen their intellectual property. In reality, patent infringement has very little to do with copying or theft. Here’s how I described what is probably closer to the paradigmatic case of patent infringement in "Launching the Innovation Renaissance":
'Two inventors, Kelly and Pat, work independently, neither aware of the other’s existence. Kelly patents first. Under the present law, if Pat wants to sell or even use his own invention, he must pay Kelly a license fee (!) even though Pat’s idea came from his own head and no other.'
If independent invention were uncommon this type of case wouldn’t be important but independent invention is very common. Classic cases include Newton and Leibniz with the calculus, Alexander Graham Bell, Elisha Gray and Johann Philipp Reis with the telephone, Ohain, Campini, and Whittle with the jet engine and so on. And if independent invention is common with great discoveries and inventions then it is surely much more common with ordinary innovations. As a result, it’s not surprising that most patent cases don’t even allege copying.
He proposes that "independent invention" be an available defense for claims of infringement. I agree in principle, but I worry that it would turn into just another way for people with the legal resources to tie up the system until their opposition gives in.
How would such a system affect drug discovery? Since we tend to spend a lot of time making sure that our molecules really are legally differentiable from the competition, I think that this would be less of an issue for us. But it's certainly true that some cases would arise. I personally have worked on a series of compounds (some years ago) that turned out to be the exact same series that a competitor was working on. The patents applications were filed within a couple of weeks of each other, and there were many compounds that overlapped. There are some areas where an independent invention defense could come in very handy (or be a major pain, depending on your relationship to the sharp end).
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