Viewpoint: Patent Disclosure Policy and Willful Infringement Doctrine

It seems fair to say that a major goal of the patent system ' to be a channel of technological disclosure ' remains largely unfulfilled. Scientists and engineers seldom, if ever, consult patents in the course of their work. It is the technical and scientific journals that are consulted by practitioners of a particular field, and such journal articles ' while almost always containing numerous references to other such journal articles ' seldom make reference to a patent. This article considers whether the willful infringement doctrine (<i>ie,</i> the punitive enhancement of damages for willful infringement) is a significant cause of the relative unimportance of patent disclosures to the process of technological innovation. This article also asks whether two fundamental objectives of the patent system, disclosure of patents and protection of the patent holder, might not be better served by elimination of the doctrine. While it would seem quite reasonable to question the further perpetuation of the willful infringement doctrine, given its potential chilling effect on those seeking to consult patent disclosures, this question is rarely asked, if at all, presumably due to the doctrine's antiquity.

21 minute read September 01, 2003 at 11:48 PM

By

Jonathan T. Kaplan