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Negligent Innovation

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Innovation is the buzzword of our time. Everyone wants to be an innovator. Corporations strive to be innovative. All this hype is good. Technological innovation is accepted as the single most important driver of economic growth. We should be obsessed with innovation. As such, it is not at all surprising that innovation and technological commercialization lie at the heart of justifications for the patent system. But there is something quite odd about these theories and indeed with our patent system: they never actually require innovation. A patentee is not obligated to take on the risky work of development and commercialization. They are never required to deliver the promise of their invention. A patentee can just wait for others to commercialize and then the patentee can emerge to hold-up and tax those actual innovators. And surprisingly, it is the commercialization theories, with their demands for strong patent protection, that provide cover for these non-innovators. This Article aims to correct this by building a tort-based commercialization theory focused on protecting actual innovators. Significant benefits flow from this view. First, it describes unintentional patent infringement as a real accident, like a car crash. This demystifies patent liability by emphasizing the real, wasted resources that infringement entails. Second, this accident model provides a compelling explanation for some (but not all) independent inventor liability. Independent inventors should be liable for infringement only when they could have reasonably avoided the accident. Independent inventors should be liable when they are negligent innovators. Conversely though, for patent assertion entities, their inaction contributes to the accident, and their contributory negligence should reduce or eliminate patent remedies against inadvertent infringers. Third, this patent accident framing clarifies the long-standing puzzle of patent timing. It explains why patent rights attach early at the time of invention even when later commercialization is the ultimate goal.

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