When Nominal is Reasonable: Damages for the Unpracticed Patent

To obtain a substantial patent damage award a patentee need not commercialize the patented invention; the patentee need only show that its patent was infringed. This surely incentivizes patenting but it dis-incentivizes innovation. Why commercialize yourself? The law allows you to wait for others to take the risks, and then you emerge later to lay claim to “in no event less than a reasonable” fraction of other people’s successes. It is rational to be a patent troll rather than an innovator. This troll-enabling interpretation of patent law’s reasonable royalty provision, however, is wrong as a matter of patent policy. Surprisingly, it is also wrong as a matter of patent history. The courts created the basis for reasonable royalties in the nineteenth century, thereby marking a significant change to patent damages. But this precedent was nowhere near as sweeping as today’s interpretation would suggest. Up to the mid-1800s, the existing routes to patent damages were strict, available only to patentees who had already commercialized their patented invention. Budding innovators who were starting to commercialize but who could not yet prove an established royalty or lost profits were left out. Courts developed reasonable royalties for them. Those cases never extended reasonable royalties to those who simply sat on their patents waiting to extract payment from others. Starting in the 1970s, however, reasonable royalties came unmoored from that historical foundation. Infringement alone, without any evidence of commercialization, now creates a presumption of compensable harm. Today’s view of reasonable royalties is unsupported by patent history and sits in tension—if not outright conflict—with binding Supreme Court cases. Properly understood, some efforts to commercialize or some evidence of copying are still necessary for significant reasonable royalties. As a result, nominal damages are still reasonable to compensate for infringement of an unpracticed patent when asserted against independent inventors

Non-thermal nuclear magnetic resonance quantum computing using hyperpolarized Xenon

Current experiments in liquid-state nuclear magnetic resonance quantum computing are limited by low initial polarization. To address this problem, we have investigated the use of optical pumping techniques to enhance the polarization of a 2-qubit NMR quantum computer (13C and 1H in 13CHCl3). To efficiently use the increased polarization, we have generalized the procedure for effective pure state preparation. With this new, more flexible scheme, an effective pure state was prepared with polarization-enhancement of a factor of 10 compared to the thermal state. An implementation of Grover's quantum search algorithm was demonstrated using this new technique.Comment: 4 pages, 3 figures. Submitted for publicatio

Rethinking the Concept of Exclusion in Patent Law

Patent law’s broad exclusionary rule is one of its defining features. It is unique within intellectual property as it prohibits acts of independent creation. Even if a second inventor had no connection or aid from an initial inventor, patent law allows the first inventor to stop the second. Even though a number of pressing problems can be traced to this rule, it remains untouchable; it is thought to be essential for incentivizing invention. But is it really our only choice? And why is it so different from our otherwise widespread reliance on free entry and competition in markets? The current rule and its anti-competitive stance are defended as being economically necessary as well as being administratively manageable. This article questions both of these justifications. As an alternative, the article explores a narrower type of exclusion suggested by Learned Hand some fifty years ago. The article finds that his reform ideally could provide for the same set of inventive projects (if not more) as the current rule while it could avoid many of the pitfalls bedeviling the current system. Learned Hand’s suggested rule models itself on copyright where infringement extends only to copyists and thus allows generally free entry and competition. Interestingly, despite the competitive pressures and their reduction in the magnitude of the reward to the initial inventor, this ‘free entry system’ can provide for the same set of inventive projects as the current rule and because of the competitive pressures, it can do so with improved social welfare. Furthermore as to administration, though there are surely difficulties in both monitoring and adjudicating such a copying-based patent rule, there are important unappreciated self-enforcement benefits. Though far from advocating an immediate doctrinal change, these results suggest at least a conceptual reorientation wherein prevention of copying and its resulting economic undercutting and not the per se prevention of competition become the ideal goals of the patent system. Rather than being a necessary economic and administrative feature, patent law’s broad conceptualization of exclusion may be an artifact that we would jettison if only we could

The Unresolved Interpretive Ambiguity of Patent Claims

Claims are at the heart of every major patent related issue. Most importantly, they determine a patent\u27s potent rights of exclusion. Yet, we cannot predict how courts will set the exact boundaries of claims. This renders smooth operation of the patent system near impossible. For some time, scholars have theorized that a basic policy disagreement is a source of this uncertainty. Some judges favor narrower patents, some favor broader and judges will naturally tend toward their policy preference. Policy disagreements result in claim uncertainty. Recently, scholars Tun- Jen Chiang and Lawrence Solum have taken this view further arguing that this policy debate is the only problem preventing clear and consistent understanding of patent claims. That position is premature; there is another unnoticed and somewhat antecedent source of confusion. Patent law has not made clear what a patent claim (for lack of a better verb) claims. Patent applicants are surely delineating a boundary with their claims but patent law has not made clear what we are drawing the boundary around. When we write claims, exactly what question are we supposed to be answering? It is not clear whether a claim in a patent application is the statement I claim to have invented the following things or instead the request I would like to claim exclusionary dominion over the following things. These are different in kind. Unfortunately both understandings have doctrinal support and both are operating simultaneously yet confusingly in patent law today. The proper way to handle patent claims depends on which view is correct. The uncertainty and disagreements that are plaguing patent law can be explained not just as a policy dispute but instead as confusion over this basic understanding of patent claims. This article outlines these two conflicting views, their implications for patent law and how we should resolve the ambiguity. Correctly understood, though claims are central in determining exclusion, we should nonetheless interpret initial patent claims as the statement I claim to have invented the following things

Negligent Innovation

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

Maintaining Competition in Copying: Narrowing the Scope of Gene Patents

In supporting gene patents, the patent office, the courts and other supporters have assumed that gene discoveries are identical to traditional inventions and therefore the patent system should treat them as identical. In other words, they have assumed that the relatively broad claims that are used for traditional inventions are also appropriate for encouraging gene discovery. This article examines this assumption and finds that gene discoveries are critically different from traditional inventions and concludes that the patent system cannot treat them as identical. As a doctrinal matter, this article applies the generally overlooked constitutional requirements of inventorship and originality and concludes that broad claims to gene discoveries cannot be supported because gene discoveries are essentially copied from nature and thus relatively unoriginal. As a policy matter, the article finds that broad gene patents are also a demonstrably worse bargain for society. Broad gene patents run contrary to patent law\u27s own drive to encourage desirable forms of competition. Having addressed the policy and doctrinal problems with broad gene patents, the article proposes not invalidating gene patents per se but rather narrowing their claim scope. The article proposes a narrower model claim to realign gene patenting with patent law\u27s doctrinal and policy foundations. Following copyright\u27s treatment of low authorship works like maps and charts, the model claim narrows claims in low inventorship works like gene discovery. The model claim protects the initial gene discovery against outright piracy but it is narrow enough to allow for independent creation, and thus competition, from later arriving discoverers

Negligent Innovation

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

Maintaining Competition in Copying: Narrowing the Scope of Gene Patents

In supporting gene patents, the patent office, the courts and other supporters have assumed that gene discoveries are identical to traditional inventions and therefore the patent system should treat them as identical. In other words, they have assumed that the relatively broad claims that are used for traditional inventions are also appropriate for encouraging gene discovery. This article examines this assumption and finds that gene discoveries are critically different from traditional inventions and concludes that the patent system cannot treat them as identical. As a doctrinal matter, this article applies the generally overlooked constitutional requirements of inventorship and originality and concludes that broad claims to gene discoveries cannot be supported because gene discoveries are essentially copied from nature and thus relatively unoriginal. As a policy matter, the article finds that broad gene patents are also a demonstrably worse bargain for society. Broad gene patents run contrary to patent law\u27s own drive to encourage desirable forms of competition. Having addressed the policy and doctrinal problems with broad gene patents, the article proposes not invalidating gene patents per se but rather narrowing their claim scope. The article proposes a narrower model claim to realign gene patenting with patent law\u27s doctrinal and policy foundations. Following copyright\u27s treatment of low authorship works like maps and charts, the model claim narrows claims in low inventorship works like gene discovery. The model claim protects the initial gene discovery against outright piracy but it is narrow enough to allow for independent creation, and thus competition, from later arriving discoverers