5 Comments

1. Criminal law has a primary deterrent purpose. In examining why patent law lacks criminal sanctions, it is necessary to understand that all intellectual property law is based upon society weighing its interests in encouraging innovation through widespread access/dissemination/copying/etc… with that of providing incentives to inventors and authors to create inventions and works.

   A patent provides an inventor with an incredible amount of rights–a state-granted monopoly–but only for a very limited time. The purpose of patent law is to encourage inventors to share their innovations with the public by fully disclosing their inventions in exchange for a monopoly. If not for full disclosure of inventions, society might never profit from or even understand the inventive technology of an invention. Hence, by achieving invention disclosure via patents, society has already achieved its goal and leaves it to the patent owner to protect his/her own rights. A patent owner knows his/her invention and can easily (theoretically) identify infringers because he/she limits the channels of commerce through which the invention travels and the quantity of copies. Consequently, society receives few additional benefits by criminalizing patent law and the additional deterrent of criminal penalties for patent infringement is unnecessary to ward off potential infringers because the inventor is quite likely to find an infringer on his/her own. Furthermore, society may want to encourage infringers which may in turn increase innovation, so if an infringer can pay an inventor’s loss, society and the inventor may just win.

   Copyright law, however, seeks to protect authors once they’ve created by preventing unauthorized copying. Copyrights are easier to infringe, one often needs no skill in the art and a simple pencil and paper will do. A copyright owner may be unaware of infringement because a violation of his/her right is a copy of the original and once in commerce, the owner has difficulty tracking his/her works (esp. if embodied in different media) and in distinguishing an infringing copy from a valid one. Thus, copyrights require a greater deterrent to prevent infringement. Additionally, society receives little benefit from copyright infringers because they are not likely to increase innovation; the exceptions for copyright infringers who increase innovation are already exceptions to copyright protection.

   This is, of course, a very simplified answer; entire courses are devoted to comparing the innovative incentives in different types of intellectual property law. There are also other theories behind criminal law, such as punishment, and intellectual property law, such as a copyright being viewed as more of a ‘natural right.’

   Comment by J. Penry — August 7, 2006 #

2. There is a need for criminal sanctions against piracy and counterfeiting. These often involve copyright and/or trademark infringement, but only rarely patent infringement.

   There is a current proposal in the EU to criminalise intentional patent infringement. Here are some arguments against it:
   http://www.cipa.org.uk/pages/press/article?84417AA5-1275-449E-8EEE-F347F138C373
   http://www.cipa.org.uk/download_files/preliminary_Proposed_Enforcement.pdf

   Think about this from the point of view of a patent attorney. A client consults you about a competitor’s patent. You make a thorough study, and advise that the patent is invalid - after all, the Patent Office is regularly criticised for its poor quality . Your client goes ahead and intentionally infringes the patent.

   If your opinion turns out to be wrong, your client is liable to be sued and to pay damages. Fair enough. But should he also go to prison, as a copyright or trademark pirate might?

   If so, then you too could go to prison - you are an accessory who advised and encouraged him to commit the offence.

   What will this do for competition? Obviously it is in the public interest for people to respect patents when they are valid. But invalid patents are anti-competitive and not in the public interest.

   Yet if there are criminal sanctions, then people will be scared so that they even respect the invalid patents. They’ll even have difficulty finding an attorney who is prepared to take the personal risk of advising them it’s invalid!

   Comment by Tim Jackson — August 8, 2006 #

3. I think there may be a simpler explanation, rooted in the difference between patent and copyright rights.

   It’s a basic rule of criminal law that in order to be criminally liable you need a criminal act and a state of mind to commit the act (”actus reus” and “mens rea”, if I remember my first-semester law school class correctly).

   Criminal copyright infringement punishes copying a work - “the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000″. Even civil copyright infringement requires the basic element of copying at some level. It is the access to the work itself, and the copying of that work, which defines the act of infringement (”actus reus”). It isn’t really possible to copy something without knowing that you are copying something (”mens rea”). There’s no infringement if the infringer independently created exactly the same work without knowledge of the original. Therefore, you can’t inadvertently infringe a copyright.

   Patents protect inventions against those making, using or selling inventions as defined in the claims of the patent, whether they copied or not. It is the claims of the patent, not the work (product), which defines what is infringement. Copying a product is not infringement, so long as none of the claims of a valid and existing patent are infringed.

   It is not only possible that the alleged infringer was unaware of the patent claims when they made, used or sold their product, it is more likely than not that the alleged infringer had no idea the patent even existed. Even if they did, in most cases it takes a lawyer and a court to determine what the claims cover.

   Thus, criminal penalties for copyright infringement are to deter deliberate copying of a work for commercial purposes and in significant quantities, which is something an infringer knows he is doing and can be easily proven by showing access to the copied work and identity of the result.

   Criminal penalties for patent infringement would have no such effect, unless it could be proved that the infringer not only knew about the patent but understood its claims and proceeded anyway - in those rare cases, punitive damages in civil cases would be sufficient deterrance.

   Comment by Mike Brown — August 9, 2006 #

4. Blawg Review #70

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5. Blawg Review #70

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