May 2007 Vol. 105 No. 7 THE REVIEW

Correspondence: Should Patent Infringement Require Proof of Copying?

Mark A. Lemley

Patent infringement is a strict liability offense. Patent law gives patent owners not just the right to prevent others from copying their ideas, but the power to control the use of their idea—even by those who independently develop a technology with no knowledge of the patent or the patentee. This is a power that exists nowhere else in intellectual property (IP) or real property law, but it is a one that patentees have had, with rare exceptions, since the inception of the Republic. In an important paper in the Michigan Law Review, Samson Vermont seeks to change this, arguing that independent invention should be a defense to patent infringement, just as it would be in copyright or trade secret cases. In an era in which both the Supreme Court and Congress are showing a nearly unprecedented interest in patent law and in which there is a general sense that the patent system is out of whack, Vermont’s idea may be one whose time has come.

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