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A major consideration for both is any weakening of patent protections, such as the limitation on damages based on apportionment and willfulness. Strong patents are of critical importance to manufacturers as their system of business is underscored by protection on the products, devices and components they make. Huge costs are associated with the machining and production of even the smallest components and lessening the enforceability of a given patent would mean the loss of the capital invested to develop it, the jobs assigned to produce it and the contribution to our economy by its production.

If damages are limited, infringers could become blasé or even intentional about violations. The notion of apportionment and willfulness are also problematic. Apportionment addresses the relative percentage of an infringing component for a product or service. However, the percentage an individual patent contributes to the whole may or may not be reflective of the investment required to create the original intellectual property. Property ownership matters and should be enforced unilaterally. The relative percentage of abuse should not be a mitigating factor in an enforcement or infringement charge. This should be of the greatest concern to universities and their researchers as their innovations rely on partnerships that often profit from only the IP participation.

In contrast, a vocal supporter of the current reform proposals is the high-tech industry. With their industry evolving so rapidly, reducing the time from concept to reality can make or break a company. Additionally, hundreds or thousands of components in a single device means an equivalent number of patents to contend with and the potential infringement if not careful. Their concerns are understandable, but should they not be responsible to ensure that every patented piece of their products are properly licensed? Reducing their responsibility instead of their accountability seems an incorrect proposition to serve the demand for speed to market.

Surprisingly, small businesses, more so than large, tend to litigate to protect their patents out of necessity. Often, the fate of a small concern may rest on the weight of even a single patent, so vigorous defense is a must. If infringers are protected by the new patent "reform" in a decreased penalty for their illicit activities, any number of small businesses could be in business no more.

In his New York Times small business blog, You're the Boss - The Art of Running a Small Business, Case Western Entrepreneurial Studies professor Scott A. Shane wrote, "...smaller damages would most likely motivate large companies to infringe on start-up companies' patents since the potential of large damages is one of the key deterrents to patent infringement." Shane then recommends viewing the film A Flash of Genius for an example. If you haven't seen it, the movie tells the story of Robert Kearns, the inventor of the intermittent windshield wiper, and how Ford Motor Company and other car manufacturers blatantly infringed his invention.



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