Mike has been advocating an independent invention defense against patent infringement for quite some time now — that is, in the absence of actual copying, a patent holder should not be able to sue a subsequent innovator. There are plenty of posts going over the rationale for such a defense, and I don’t want to rehash those arguments when you can just click on those links above and read the originals.

What I do want to do is address one of the most common concerns with the independent invention defense: feasibility — in particular, the concern that independence (or dependence) would be too difficult to prove. See, for example, some of the comments on the EFF’s push for this:

“Independent arrival” is a vacuous notion, with possible noble intent, but difficult-to-impossible to prove. It would require mind-reading beyond current human abilities.

Or this one:

How on EARTH would a patent holder succeed in court if the defense could just claim ignorance?

The short answer is that we do this already. Patent holders can claim extra damages if they show that an infringement was “willful”, and occasionally they succeed in proving this.

The long answer is that our legal system has been dealing with this problem for a long time. Someone shoots and kills someone else. The shooter claims self-defense. Or that it was an accident. Or insanity. You’d think that these defenses would “require mind-reading beyond current human abilities”, but as it turns out, judges and juries have done an OK job at sorting it all out. Sometimes people get away with murder, but on the whole, murders have not skyrocketed because of self-defense claims.

One reason is that it’s harder to lie in front of a jury than many people think it is, especially when the other side’s lawyer can call you out on it.

The other reason is that there’s evidence outside of what you tell the jury. If you murder someone, there are witnesses, security cameras, smoking guns, and friends that rat you out. If you’re an inventor, you make notes and schematics. You communicate with co-workers and colleagues. You browse the Internet, leaving a browser history and IP log. And if you work for a large corporation, all of your communications and notes are likely logged and archived precisely because of the risk of litigation. That’s a lot of evidence that could be used to prove, or disprove, independent invention. Just look at the Apple v. Samsung case, where the jury was able to rely on Samsung’s own documents to conclude that Samsung had willfully copied Apple (whether such copying is really a problem is a different question).

Independent Invention and Reproducibility

A corollary of needing proof of dependence is an incentive for patentees to disclose their inventions in a manner that’s actually useful to others. The law currently requires patentees to describe enough of their invention to enable someone else to reproduce it, but they certainly don’t have any incentive to make it easy to reproduce. Trolls actually have an incentive to obfuscate what a patent covers and spring it on a business only after that business has sunk billions of dollars into developing their own product.

By contrast, if a patent holder can only enforce his patent against parties that actually copied the invention, the patent holder has a strong incentive to disclose in a way that makes copying easier. Perhaps patents would look less like this IBM patent for “[s]ystems and articles of manufacture for managing metadata associated with a data abstraction model abstractly describing data in a database” (ugh) and more like this Ruby on Rails tutorial, which helpfully includes screenshots and code samples. This improved disclosure would make it a lot easier to prove dependence. For example, if your patent includes code samples, an infringing product might contain code suspiciously similar to your own. Or if you included useful links, the infringer’s browsing history might reveal frequent visits to those sites. And so on.

Focusing on the actual usefulness of a patent would also address another concern with an independent invention defense — that trolls would spam businesses with patents to demonstrate that business had notice of the patents, and that businesses would avoid liability by forbidding their employees from reading patents altogether. If a patent plaintiff had to show not merely that the defendant knew about the patent, but that the patent was actually useful to the defendant, the trolls would be out of luck. Usefulness is not part of their strategy. Likewise, if patents were useful, many businesses would take advantage of them. Independent invention, like all invention, takes time and money. So long as it’s cheaper to license than to independently invent, (smart) businesses will choose to license.

Dealing with Causation Problems

A related concern with proving independence is that nothing is truly independent. As Mike often points out, innovation isn’t about creating something entirely out of the blue but it is about taking existing ideas and improving them. How then do you prove independence when the innovative process is so often about copying? And what if earlier patents did contribute to your invention, but the contribution was infinitesimal?

As it turns out, this is also a familiar problem for the legal system. It’s very similar to questions of causation. Traditionally, a defendant was only liable if his actions caused the plaintiff harm — that is, but for the defendant’s actions, the harm would not have occurred. Likewise, you might say a later invention is dependent on a prior invention if the later wouldn’t have been invented when it was but for the prior.

The but-for test has some obvious problems. Suppose two campers start fires on opposite ends of a forest at the same time, and both fires spiral out of control and burn down the forest. You can’t say, but for the first fire, the forest wouldn’t have burned down, because the second fire might have caused the same amount of damage. Or suppose a liquor store clerk sells alcohol to a minor, who is then caught by her morally uptight mother, who is in turn so mortified than she runs outside and is struck by a speeding driver. But for the sale of the alcohol, the mother would not have been hit, but it seems silly to blame the liquor store clerk for that.

The legal system basically addresses this problem by using open-ended language and granting discretion to judges and juries on edge cases. Thus, in the case of the forest fire, a jury could hold both campers responsible because each fire was a “substantial factor” in the burning of the forest. And in the case of the uptight mother, a jury could give the liquor store clerk a pass, because the liquor sale was not the “proximate cause” of the mother’s injuries. Alternatively, the legal system may give judges and juries the discretion to recognize differing degrees of fault and adjust damages accordingly.

As with any system that defers to personal judgment, some decisions may seem arbitrary, but for the most part, causation problems have not crippled the legal system. And if such problems were encountered with an independent invention defense, the outcomes would probably be less arbitrary than in tort cases. For instance, there’s often no objective basis for saying a driver is 60% at fault in an accident as opposed to 70%. But, in a patent case, records of profits, research expenditures, and the costs of alternatives provide evidence of how much a given patent actually mattered.

Making Patents Useful

Patent advocates might object that an independent invention defense would introduce greater uncertainty into the patent process, and that it would hurt small (independent) inventors more than large corporations. First, an independent invention defense, depending on how it’s drafted, could potentially reduce uncertainty in other areas. For instance, how much one invention contributed to another is less subjective than asking whether the invention was “obvious”. Second, most legal changes tend to introduce uncertainty, at least initially. And yes, smaller inventors will be affected more simply because they’re less able to afford expensive lawyers. But sometimes uncertainty is necessary to achieve reasonable legal outcomes. Adding a self-defense exception to laws against murder introduces uncertainty as to how a case will turn out. But nearly everyone agrees that some right to self-defense should exist, even if the boundaries of that right are unclear.

Moreover, these objections are often less about any issues with the defense itself and more about objecting to any change that makes patents less valuable. Likewise, some Techdirt readers would object solely on the basis that independent invention falls short of simply abolishing all patents (or at least all software patents). All I can say to either position is that the independent invention defense reflects the view that patents are currently too powerful, but that maintaining some level of patent protection makes sense (or is more politically palatable than total abolition). It’s in line with Judge Posner’s thinking that patents are useful when inventors face high capital expenditures to create, but low barriers to copy — an independent invention defense limits infringement to actual copying. It also addresses Tim Lee’s concern that the boundaries of software patents aren’t clearly marked — an independent invention defense would protect programmers who inadvertently infringe on those patents. And it solves the one-size-fits-all problem with patent lengths — more obvious patents will last only a short while before they’re independently invented, while less obvious ones will last a bit longer.

As with all laws, the devil is in the details. An independent invention defense would have to be drafted carefully. But the basic legal concept isn’t new. It’s feasible, and it could go a long way towards curbing patent trolls.

Previously, on Techdirt …

• The New York Times reveals that Apple’s mass patent frenzy began shortly after being sued for patent infringement itself. This confirms my longstanding suspicion that patent plaintiffs are like vampires. Upon being bit by one, there’s a good chance you’ll turn into an undead shell of your former self.
• Cisco, Motorola, and Netgear team up to fend off a patent troll suing over expired WiFi patents. It’s like the Avengers! Sans helicarrier. Because it’s patented. And horribly impractical.
• DHS makes up a report about Russian hax0rz and claims it’s a success. So you can make shit up and still be successful? That bodes well for me, because I’d like to be a lawyer. Or Tom Clancy.
• I learned that making the bottom of a font “heavier” makes it easier for dyslexics to read. There’s also something about competition and bogus lawsuits, but seriously, there’s a special dyslexics font? That’s awesome.
• A court rules that digitizing your library is fair use. It’s about fracking time.

Will the Avengers save Russian children from a life without Wi-Fi? Will Kevin Butler admit that he’s actually pretty excited about Halo 4? Will Dark Helmet feed his Charizard baby panda solely to spite PETA? Find out next week on another exciting post of … Techdirt: The Legend Continues.

Here are a couple points to ponder:

Fun fact #1: California prison guards are expensive.

Fun fact #2: South Korea’s getting robot prison guards.

I’m sure the prisoners welcome their new robot overlords, but I bet the prison guards union doesn’t. Or any other union for that matter. And they’re not alone. Over the past few weeks, tech industry commentators spent slightly more time than usual wringing their hands over whether technology was killing jobs. I think this video captures the debate pretty well.

It might sound paradoxical, but this replacement of humans by machines is actually a good reason to limit secondary liability for the robotics industry. And I’m not just referring to secondary liability in the copyright sense, but to any liability incurred by robot manufacturers because of how others use their robots.

This isn’t a theoretical issue. Automation and efficiency have always threatened certain jobs and industries — and one of the standard reactions is to somehow blame the technology itself and seek to hinder it, quite frequently by over-regulation. Of course, the extreme version of this is where the term “luddite” came from — an organized effort to attack more efficient technology. Of course, that resulted in violence against the machines. More typical were overly burdensome regulations, such as “red flag laws,” that said automobiles could only be driven if someone walked in front of them waving a red flag to “warn people” of the coming automobile. Supporters of this law, like supporters of secondary liability laws for robots, can and will claim that there are “legitimate safety reasons” for such laws and that the impact on holding back the innovation and extending the lifetime of obsolete jobs is just a mere side benefit. But like those red flag laws, applying secondary liability to robotics would significantly hinder a key area of economic growth.

Techdirt has covered the question of a secondary liablity safe harbor for robots before, and Ryan Calo’s written a great paper about the legal issues coming out of the robotics arena, but an even more important (and specific) point is exactly why these safe harbors matter for job creation — even as some continue to argue the other way (that such safe harbors will destroy jobs).

Technology has been replacing human labor since humans invented, well, technology. But while technology may get rid of inefficient jobs, it eventually creates replacements. To cite one commonly-used example, the switched telephone network put operators out of a job, but it created plentiful new jobs for telemarketers (and other businesses that relied upon the packet-switched phone network… including everything built on and around the internet today). The problem is that while it was obvious how many operators would be out of a job, it wasn’t immediately clear how lucrative (or annoying) telemarketing could be, let alone the eventual transformation of the phone lines into a vast global information sharing network, and the hundreds of millions of new jobs created because of it.

Erik Brynjolfsson and Andrew McAfee examine this problem in detail in their book, which I recommend. But much of it boils down to this. Technology creates jobs, yet it’s not obvious where the new jobs are, so we need bold, persistent experimentation to find them:

Parallel experimentation by millions of entrepreneurs is the best and fastest way to do that. As Thomas Edison once said when trying to find the right combination of materials for a working lightbulb: “I have not failed. I’ve just found 10,000 ways that won’t work.” Multiply that by 10 million entrepreneurs and you can begin to see the scale of the economy’s innovation potential.

This is especially important for robotics. It’s obvious how robots make certain jobs obsolete — e.g. driverless cars don’t need drivers — but it’s less clear what new job opportunities they open up. We need to try different things.

Unfortunately, secondary liability creates problems for robot manufacturers who open up their products for experimentation. Ryan Calo explains this in more detail, but the basic problem is that, unlike computers, robots can easily cause physical harm. And under product liability law in most states, when there’s physical harm to person or property, everyone involved in the manufacturing and distribution of that product is legally liable.

Ideally, we’d want something like a robot app store. But robot manufacturers would be unwilling to embrace commercial distribution of third-party apps if it increased their chances of being sued. There’s evidence that Section 230’s safe harbors (and, to some extent, the DMCA’s safe harbors) play a key role in facilitating third-party content on the web. Absent a similar provision for robots, manufacturers are more likely to limit their liability by sticking to single-purpose robots or simply locking down key systems. That’s fine, if we know exactly what we want our robots to do — e.g. replace workers. But if we want robots to create jobs, it’d help to limit secondary liability for the robotics industry, open things up, and let widespread experiments happen freely.