Willful Patent Infringement: Theoretically Sound? A Proposal to Restore Willful Infringement to Its Proper Place Within Patent Law

The patent system encourages public disclosure of information and investment in invention by protecting the subject of the patent from infringement by outside parties. Patent infringement contains elements of strict liability, negligence, and intentional torts. The basic claim of patent infringement carries no required mental state and compensates the patentee with a reasonable royalty or recovery of lost profits. In exceptional cases, the patentee may recover attorney’s fees. Upon a showing of willful patent infringement, the court may award up to treble the award granted by the jury. Willful infringement initially resembles an intentional tort because “willful” ordinarily involves intentional or deliberate conduct and treble damages are essentially punitive in nature. However, the Federal Circuit sometimes defines willful infringement subjectively, and other times in terms of a “duty of care” and “reasonableness,” concepts mainly associated with negligence law. This hodgepodge of negligence law and intentional tort law has resulted in confusion and unpredictability for potential litigants.The author of this note attempts to provide clarity by identifying the ele-ments of negligence present in willful infringement and creating a new cause of action for negligent patent infringement. The author begins with a thorough discussion of the principles of patent law, willful infringement, and the awards available. Next, the author sets out the fundamental elements of negligence. The author then analyzes willful infringement in light of those core concepts, showing that the availability of treble damages conflicts with the essentials of negligence law. The author concludes, however, that neither negligence nor intent should be rejected, but that they should be separated into distinct causes of action, with distinct damages available. Under the author’s scheme, all levels of culpability are accounted for, and the available damages more closely correspond to the infringer’s level of culpability than under the current system.

The full text of this Note is available to download as a PDF.