Defending Independent Invention

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.

Independent invention should be a defense in a patent infringement lawsuit. An independent invention defense would allow Kelly to exclude imitators but would prevent Kelly from excluding an independent inventor such as Pat.

Inventors should not have to pay to use their own ideas! An independent invention defense is not only just, it also has good economic properties. An independent invention would create more competition. On the one hand, this does reduce the “pot of gold” incentive to create new ideas, the winner of a patent race might have to sell as a duopolist rather than a monopolist.  In this case, however, there are several reasons why we wouldn’t expect the number of ideas to fall and innovation could even rise.

First, firms today are often surprised to find that they are being sued for patent infringement. An independent-inventor defense would give inventors greater security in their ideas, thus increasing the incentive to invest. In this age of cumulative innovation often what innovators want most is the security that they can build on what they have produced already. Lawsuits and associated transaction costs would also be reduced.

Second, the type of inventions that are most likely to be independently invented are those with high value relative to their cost. Thus, an independent-invention defense would automatically tend to offer smaller rewards to low-cost innovations and larger awards to more costly innovations, this is exactly the optimal rule discussed in my paper Patent Theory versus Patent Law (pdf) but unlike the system described in that paper it does not require anyone to examine an inventor’s costs.

The patent system is supposed to be about increasing the progress of science and the useful arts but to often it ends up cudgeling the very people it is meant to protect, the independent inventors.

Addendum: Joe Mullin has a good post on copying and patent as does libertarian patent attorney Stephan Kinsella. Samson Vermont, my colleague at GMU law, has a longer paper on the independent inventor defense that discusses details of implementation.


In a healthy research field, one should expect independent invention to be the norm, not the exception. I would be surprised if most great scientific discoveries did not happen independently, and if this is true of scientific discoveries, it should also be true of technological innovations.

One problem with that is that "independent invention" is hard to show conclusively in a fair way, given that the patent law requires extensive disclosures regarding how your product works. If I invent something, disclose all the relevant details, then my idea in all its glory is posted in public records (and online) for all to see, but you assert it was independently invented, how can you show (and I assume the burden is on you, not me) that you worked out EVERY detail without any influence from my publicly disclosed work?

There may be a few cases where one could (if you had a working prototype and could demonstrate conclusively that it was built and functioning before my work went public, for example), but in most cases it would be tough. Plus, say you did independenty invent it, Can you sell/license the idea? If you can't, then the idea may not be worth much to you, unless you have the capital to make a business out of it without outside investment. If you can, can you sell/license it to more than one buyer/licensee? If you can do that, my patent is worth much less, because you can license it to any number of potential competitors, and there goes my market power.

If you want a law that allows another person to use their own independent work, but not copy, then trade secret law is the model you want, With trade secrets though, I have to keep the details of my invention secret, so the public can never easily copy it, and if anyone tries, I can sue them.

The difference from a public perspective is that a patent encourages disclosure, and the market as a whole eventually gets rights to use the idea freely, Trade secrets law encourages secretiveness, but everyone who develops the idea independently gets to use the idea (and the idea never enters the public domain unless someone voluntarily discloses the secret).

Do patents encourage disclosure in practice? I don't know about other areas, but for software, nobody except lawyers ever read patents, so the disclosure there doesn't help. Is the situation different for inventions/medicine?

With modern analytical capabilities reverse engineering a product has become tremendously easier (imagine trying to guess ingredients of a concoction pre-NMR / MS, gas chromatography etc. ). Hence the historical advantage of a patent to societ over a trade secret (public disclosure) has become increasingly irrelevant.

In any case, a patent can always be tweaked to confound a replicators attemts (or at least make him waste time in dead ends) and indeed this is routinely done.

I have similar thoughts. Its going to be an enforcement nightmare. Besides what time window does the lagging inventor enjoy to still complete his independant research and get a patent out of it?

The tracking of where information comes from already is happening. If you, no, when you do something in software that someone else has patented, if it is proved you know the patent beforehand the penalties are much higher. Developers are purposely kept ignorant of any patents related to what they are working on.

The most famous explication of how one might overcome the inferrence that something is derived from the public record rather than independently invented came in the movie "Paycheck" (2003) based on the Philip K. Dick short story of the same name published in 1953. There the engineer hired to invent a product that does everything a competitor's product does is intentionally isolated from contact with the outside world (and indeed has his own memories erased) until had has invented the same thing.

"how can you show (and I assume the burden is on you, not me) that you worked out EVERY detail without any influence from my publicly disclosed work?"

Lab journals are considered legal records. If my lab journal has dated entries showing that I had invented what you patented before your patent was granted, that should be enough to dismiss the case.

Of course, one ought to be innocent until proven guilty in a court of law.

Ought to be.

The lab journal doesn't help much in the software field where most inventions that get patented can be replicated by any skilled engineer with a day or two's work and would never be included in any kind of lab journal. Likewise for the various business method patents that would usually constitute a half page in a business proposal but could never be taken seriously in a lab journal.

According to Seth Shulman, The Telephone Gambit, Bell didn't independently invent the telephone, but instead relied on a purloined copy of Elisha Gray's patent.

Yes, in the famous story about how he called out to his assistant, Thomas Watson, what isn't commonly known is that there was no reply because Watson was actually out stealing Gray's patent that day.

Your proposal would allow companies to play games after being sued. They would come out of the woodshed asserting independent invention when there was no such thing. There is already a "prior user" defense in patent law - extended to all areas of technology under the new patent reform law.

Also agree with the comment above regarding the difficulty of trying to license exclusively under your proposed regime...not to mention the incentive effects on patenting under a "indepedent invention" system.

Let me also add one other argument against your idea. It's not hard to search for patents prior to inventing or filing yourself. That's not really the case with copyrights - which are much harder to search and difficult to determine if your work copied something in the public domain or was a derivative of an existing work under copyright.

Copyright is the legal protection for artistic expression, the scope of which is almost literally infinite. The likelihood of me independently and unknowingly drafting a near-copy of Hamlet is infintesimal (thousand monkeys, thousand typewriters).

This is one reason why plagiarism can be so easy to catch -- the odds of two writers using the same sentence are astronomical, even if they are expressing the exact same idea. For instance, take this incredibly quotidian bit: "I walked out of the house and glanced up. It looked like rain." That's nowhere to be found in the entire google books/google scholar corpus. In other words, those two incredibly banal, declarative, simple sentences are apparent unique. Now extrapolate that to the "The Red Wheel Barrow," which is the shortest poem I can think of.

It's also very important to know that copyright protects expression, not ideas! I can't emphasize this enough, because so many people misunderstand how copyright works. You cannot copyright the idea of a quirky but brilliant detective who solves crimes in a major metropolitan era. You can copyright Sherlock Holmes. But there are a nearly infinite number of ways to come up with "quirky but brilliant detective" that do not resemble Sherlock Holmes in the slightest. (Now it is true that most detective fiction owes at least something to Sherlock Holmes, but that's because it's not truly "independent" -- all those authors have read Doyle, probably again and again, to the point where the Holmes influence is all but inescapable. They're not coming up with the detective idea out of a vacuum, which is the hypothet here.).

Now patent is not the same thing because people are working towards a specific goal (like a telephone in 1870). The inventors working on it are constrained by the tools (late 19th century techonology and scientific theory) and the problem (invent something that transmits noises long distances over a line). Several inventors using the same tools to solve the same problem -- it's not implausible that they'd come up with similar solutions. ecce independent invention. Does it happen a lot? I dunno. But I'm sure it happens.

You just explained the reason behind the differences in terms - life plus 70 years for copyrights, 20 years for patents. My argument that patents are easier to search (find) than copyrights is one reason why there is strict liability (as opposed to copying) under patent law. At least that's what I think.

Patents, at least in the field I'm most familiar with, software, are not easy to search. Lawyers are paid big bucks to make their patents as obscure and unreadable as possible. Add in the fact that very few patent lawyers actually understand the technology, and therefore don't understand what bits of what they programmers are telling them are important, and you get some really impenetrable output. Add in the fact that software patents never actually include enough information to implement the patent (violates disclosure rules, but that never seem to matter) and you get a morass that's effectively unsearchable.
This is why standard legal advice to programmers is to never, ever read patents. If you do, you might be on the hook for willful infringement, and the way software patents are argued, you can never be sure before litigation what the patent is actually about.

FWIW, The American Innovation Act passed last year did implement a "first to invent and first to file" hybrid system into the PTO. Dennis Crouch at has been giving lectures around the country on its effects.

Indeed, the "good posts" from the addendum are all from 2009 and before, and has information which is to be dated very swifty. For example, due to the AIA, the prior user defense is going to be availaible as a defense for anyone.

I think that this is even simpler: the patent law exists purely on utilitarian grounds (there is no inherent difference between an "invention" and e.g. my willingness to "copy" a competitor who found a niche on the market). The "utility" is seen in the fact that we get more invention than would be the case otherwise.

In other words: if a patented invention would have been invented without a patent system, such patent is a 'cost'. If it wouldn't, it's a benefit.

I don't know of other areas, but I don't know of any SW patent that would cover something, that simply wouldn't exist for a considerable time without the patent system in place.

Wouldn't this incentivize a certain kind of ignorance? Most innovations are the result of combining several pre-existing innovations. If independent invention is an excuse, one just has to (a)be careful not to read the latest patent disclosures, and (b) be careful to read slightly older disclosures, which will detail the building blocks for the next generation of innovation. With this strategy, a troll company might "independently invent" almost anything.

Good idea, this would be a very sensible reform. Could help against patent thickets and gridlock.

Where should the burden of proof should lie though? Should the defendant have to prove that they really did invent it independently, or should the suitor have to prove that the defendant copied the idea?

On the contrary, this would give patent lawyers yet one more thing to litigate. Although it may cut down on the number of lawsuits filed a bit.

I think the defendant would bear the initial burden, as in an affirmative defense. Requiring a plaintiff to prove actual copying would be nearly insurmountable.

Look at Kevin Kelly's What Technology Wants for copious evidence of the prevalence of independent invention.

Showing independent invention isn't as hard as it sounds if the inventors keep dated, witnessed notebooks, which is standard practice for those who intend to patent anyway.

The main improvement to the patent process I'd is to dump the lawyerism: no "claims" allowed. The patent consists of exactly the invention, i.e. blueprints, model, source code, etc. There needs to be an incentive to make it *easier* to copy, not harder. Perhaps instead of a grant of monopoly, the inventor simply gets paid directly based on the number of copiers?

I excerpted just the relevant chapter:

Wikipedia is much poorer, but still relevant:

"Showing independent invention isn’t as hard as it sounds if the inventors keep dated, witnessed notebooks, which is standard practice for those who intend to patent anyway."

30-some years ago when I went to work at Bell Labs, all new hires got the lecture: bound notebooks not looseleaf, pen not pencil, write it all down including things that didn't work, never write "I'm giving this up for a while," and whenever you think of something that might be important have someone write "Read and understood" with a signature and date.

Good practice declined steadily from then until my retirement from the tech field. I suspect that the majority of patent applications filed these days couldn't show a legally acceptable trail from concept to practice if one were demanded.

Is it possible to buy patent insurance? Suppose I write an iPhone app and sell it for $0.99. Six months later I am served notice that I am alleged to have infringed upon a patent. Is there some sort of insurance I can buy to make sure that if the judgment goes against me, I don't have to cough up?

Adverse selection? Anyone buying such insurance probably knows things you don't about their patent exposure, which means you'd better not sell them insurance...

To varying degrees that's a generic argument against almost any form of insurance.

I think patents and other intellectual property are good for, as you say, "increasing the progress of science and the useful arts," but it seems that few economists or commentators make not of the fact that they are a huge market intrusion.

The consequences are very broad, which makes it all the more striking. Apple would not be the company it is if I were allowed to contract the factories that make Apple products to sell me those products too, so I could distribute them at a fraction of Apple's markup. If you think it through, you find that all the highest paying jobs are high-paying because of some relation to intellectual property; I think it's the fundamental root of the wage premium for intellectual activities as opposed to labor ones.

Not that this is bad; my point is just it's not precisely a free market dynamic. So it seems to beg caution, when applying free market principles to some dynamics of our economy.

Soon after the invention of the Guttenberg press the ruling elite became desperately afraid of the implications of knowledge spreading so widely and quickly amongst the rabble.

"it is so dangerous to allow just ANYBODY to print up a pamphlet, WE MUST DO SOMETHING to get things under control...this is lawlessness!!" came the cries from those who were rich enough to own books in earlier days...they enjoyed their monopolies on knowledge and also enjoye the ability to easily control what the public was allowed to read.

It became much more difficult to control society, Therefore IP laws were invented so that the ruling elite could try to put controls on who was allowed to print up pamphlets, books and literature.

IP laws were not invented to help spread information, they were invented to control it. Now they are also supported by the lawyer class who benefit from it.

The internet revolution is again challenging the authorities and as the elite try to create laws to kill the internet they are also stepping up efforts to enforce IP law with greater and greater violent force.

Nobody seems to defend IP more than the entertainment industry. But what are they really defending? A movie with a street scene might include a shot of a building that I designed or own, it's mine. You can look at it, but if you photograph it and sell or rent that photograph, part of the proceeds should belong to me. A song that mentions the city where I live is using that reference to make money, I want some of those proceeds to alleviate my property taxes. Obviously this line of thinking is impractical and wrong. So is IP.

Bam! But little people don't have full time IP lawyers so Sony and GE like things to be static. They don't want equality before the law.

Alex, nice post (which I comment on here). Re your comment that the patentee would have a duopoly if there were an independent inventor defense--are you assuming that the independent inventor would also be able to get a patent? Because he would not. Only one patent can be given per invention, and it is now granted to the one who is first to file. So the second guy to file would have an independent inventor defense, but not a patent. Or are you assuming that even in this case it's like a duopoly, since only those two have the right to practice the invention?

Thanks - the latter, two firms would have right to practice. I am also assuming that the independent inventor would not have the right to license.

How would one chap be persuaded that the other chap's work really had been independent? Newton suspected Leibniz of stealing his idea partly because Leibniz had visited London and talked to people who knew of Newton's unpublished work. On the other hand, Edison had to buy out the patent of the competitor who'd beaten him to the practical light bulb, which doesn't seem to have much impaired Edison's wealth and reputation.

"Under the present law, if Pat wants to sell or even use his own invention, he must pay Kelly a license fee "

Let's be honest. Pat doesn't want to use his own invention, and if he did it is unlikely that Kelly or the courts would stop him. Patent law only matters when Pat wants to sell his invention. To the same people that Kelly is selling to, cutting Kelly out of the deal, even though Kelly got there first (and probably with the better product, or we'd instead be watching the Pat-Kelly consortium split the profits on new and improved widgets).

The proposed solution obviously creates an incentive to falsely claim independent invention - not just for Pat, but for Kelly's would-be customers - and allows that claim to be made by people who have had a chance to study Kelly's disclosure as an instruction manual on what they should be falsely claiming.

It also creates an incentive for actual inventors to postpone disclosure and patent until the last possible moment, as this reduces the risk of copying (more dangerous in a world of me-too patents) and prolongs monopolistic or duopolistic profits, but no longer carries the risk of someone else filing first and taking home all the profit.

The purpose of patent law is not just to promote innovation, but to promote disclosure as well. We do not want a world in which every innovation is a closely-held trade secret for as long as the secret can be kept. I sympathize with the inventor who comes in second in the race to invent, but sympathy is not the same as entitlement, and I believe the proposed cure is worse than the disease.

"The purpose of patent law is not just to promote innovation, but to promote disclosure as well."

next you'll tell me the purpose of government is to help the poor ...and we invaded Iraq because Cheney so desperately wanted to spread democracy for the muslims he so loves.

"The purpose of patent law is not just to promote innovation, but to promote disclosure as well."

It would be a good idea to test the hypothesis that useful disclosure is happening from time to time. Have you ever tried to re-implement something using only the patent (and other patents referenced in the document) as the guide? In my experience, there are typically very large gaps which must be bridged in order to get something that actually works, and it may not work well. The phrase "person skilled in the art" often seems to mean "someone who has spent a year or two going up the same blind alleys that I did."

A big part of the issue there is that we've gone well past the cottin gin and into inventions where either "full disclosure" would require hundreds of pages of text or "person skilled in the art" means "expert in the same sub-sub-subspecialty with all its tribal knowledge". Yes, in hindsight the guy writing the patent should have covered the specific issues that tripped you up, but in practice getting the reader within a year or two of independently building the device may be the best that can be reasonably expected.

Perhaps more importantly, disclosure doesn't end with the patent. A patent means that the inventor now has a positive incentive to provide additional interest to people interested in replicating the invention, because as soon as their replicas become commercially viable the original inventor gets a cut of the action. I have it on good authority, for example, that these guys

are pretty good with requests for assistance from anyone trying to replicate their work.

For the big-ticket inventions this will probably involve an up-front licensing agreement rather than "trust me, it's just for my personal use...", but if you're seriously in a position to replicate a big-ticket invention that usually isn't an obstacle worth mentioning.

' ' The phrase “person skilled in the art” often seems to mean “someone who has spent a year or two going up the same blind alleys that I did.” ' '

Publish the patent application on the internet immediately and give 30 days for comment, and the guys "going down the blind alleys" have plenty of time to respond with prior art evidence to block issuance of a patent. Either the idea is not practicable - if it was, they would have already filed a patent application, or it was so obvious to those experienced in the arts "going down the blind alleys" that no patent was justified under the law.

The purpose of patents is not creating monopolies, but in creating rapid publication.

To determine if this is a good idea, wouldn't the relevant question be: Would you rather have a 50% chance at being a monopolist or a 100% chance at being a duopolist for your invention? Under risk-neutrality, we'd choose 50% monopoly and then independent invention laws are more likely to reduce incentives to innovation.

Aren't people risk averse? Would you rather have $1000 or a 50-50 chance of getting $2000 or $0?

The $2000 coin toss, absolutely. Same expected return, plus the excitement of watching the coin toss. I was about to say "immeasurable excitement", but I'm certain there are plenty of accountants in Las Vegas who can precisely measure the range of values people put on that experience.

If we up the dollar values by two or three orders of magnitude, the answer changes, but due to the diminishing marginal value of money, not the presence of risk. I suspect that for the average "innovative" corporation, the total IR&D budget is a small enough fraction of the total that their marginal value of money is effectively constant across the range of plausible outcomes. When we phrase the problem in terms of "Pat" and "Kelly", we imagine lone starving-genius inventors putting their life savings into their life's work, which is not representative of the usual practice and probably not the basis for good law.

keep in mind that monopoly rents > 2x duopoly rents and businesses are less likely to be risk averse than individuals... further, think about the case where you and a competitor each race against the clock in 10 areas of development. both parties probably prefer status quo of expecting 5 monopoly products rather than 10 duopoly products...

Interesting; does economics predict that "monopoly rent > 2x duopoly rent"? I was wondering about how to analyse that bit.

Couldn't the two companies in your example mutually trade and get 5 effective monopolies if they so wish and it is indeed what they'd prefer?

Echoing John Schilling, the "original intent" of IP powers is "publish or perish".

Consider Darwin - if he had continued delaying publishing, would he be considered the father of evolution, or merely a man who gave someone else's brave insight a more refined understanding. Why didn't Darwin begin publishing two decades earlier to more rapidly advance the sciences?

The rebellious Americans were at a disadvantage because the manufacturing processes were secret, and the secrecy was protected by the British government which gave a different kind of patent to favored parties to maintain a permanent monopoly on commerce.

The innovation was a compromise between rapid publishing of ideas in exchange for a limited monopoly - it wasn't an invention of patent, but an innovative use of patent that democratized the patent. Anyone could obtain a patent by disclosing the idea publicly in a patent application.

The complexity of the patent system in the US was in response to the kind of "fairness" argument Alex is making. The patent of Joe wasn't clear but Bill saw the machine and wrote a very clear patent application and submitted it a month later. In fairness, it is argued, Joe should be helped to make the claim Bill made so Joe gets the patent for his idea. This thinking led to the submarine patent which seem to be purposely vague applications that get revised repeatedly until a practical commercial use if found for the "obvious" vague idea in the patent application and the application is refined to specifically cite the commercial product innovation.

First to file with immediate publication had some limitations two centuries ago - who would pay for the publication and the dispute resolution of the prior art challenges, but today the Internet allows cheap publication of applications immediately, and a means of immediate attack with specific prior art.

Invention requires a demonstration of practical use be made - initially this implied a machine prototype, but today an actual design which uses it would suffice, so while Kelly is first to file, Pat can be first to cite prior art in his existing application.

If two people come up with the same idea at the same time, I argue the idea is obvious.

Yep, Pat is forced to be active and quick in disclosing his ideas. So what! Publish or perish.

If you are a brilliant economist looking for a job, but aren't quick to publish your ideas and quick to apply and quick to point to the brilliance of your ideas, you lose out to the stupid by quick acting economist who understands the system. Is it fair? Who cares! Its the system that society uses to determine who merits the compensation.

You have a brilliant idea but are lazy in disclosing it, you lose. is it fair? Who cares, Its the system.

Fairness is in keeping the monopoly limited in time, because that forces the inventor and innovator to be quick to publish and then even faster in exploiting it through product sales in the short time available.

The innovation in the US patent circa 1800 was boosting the US economy and making the US self sufficient - individuals getting a profit was a small price to society for this public good, but individuals are not given the preference for merit, but for action that furthered the national interest and public policy of industrial development. The Constitution stated the first and most basic national industrial policy.

I don't think this is a good argument for eliminating patents, though I could certainly go along with reducing the term (excluding fields like drugs where it really does take that long just to pay back R&D costs) and with making independent invention a defense (if provable).

The best argument for shortening the term is that if an inventor chooses to patent, he expects someone to be able to duplicate his work (or at least reverse engineer it) fairly quickly. Otherwise he could keep a monopoly by going the trade-secret route instead.

What all of this really shows is that IP is a frivolous concept.

I always thought a good way to handle patents that would help with this would be for the patent office to keep your patent secret for, say, 1 year. If another patent on the same idea comes in within that year, it is kept as a legit patent in addition. That way it's not as if someone can just poach incoming new patents. And if someone thinks of something more than a year in advance, it means maybe they really were ahead of the curve.

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