PATENT LAW SHOULD STOP IMPOSING PUNISHMENT SIMPLY BECAUSE ONE CAN'T AFFORD AN ATTORNEY: PUBPAT Tells Federal Appeals Court of Harms Caused by Patent Law's Perverse Rule
Named for the 1983 case that established it, the Underwater Devices duty requires any person or business that becomes aware of any patent to retain a patent attorney and seek a written opinion regarding whether or not they infringe the patent. Failing to do so leads a court to presume infringement of the patent was willful and to impose a penalty three times greater than for non-willful infringement.
"Reading the duty to avoid infringing patents to require every company, regardless of size, to hire patent counsel ..., is simply unfair and unrealistic," PUBPAT stated in its Amicus Curiae brief filed with the Federal Circuit Court of Appeals in the case of Knorr-Bremse v. Dana Corp. "There are many reasons why a company might be aware of a patent but not obtain a legal opinion. One is cost." The brief cites a study from 1997 that determined the cost for retaining a patent attorney to provide a written opinion regarding a single patent can cost up to $50,000 or more.
PUBPAT argued that the Underwater Devices duty causes two significant harms. First, it undermines the goal of patent law, to disseminate useful technical information, by encouraging scientists to avoid becoming aware of patents. Second, it unfairly prejudices small businesses because the cost of seeking numerous patent opinions is a substantial financial burden.
"Subjecting individuals and small businesses to greater liability simply because they can not afford to retain a patent attorney is a prime example of a disconnect between our patent laws and the public interest," said PUBPAT's Executive Director, Dan Ravicher. "Reversing Underwater Devices will be one step towards fixing our patent system, and we fully expect the Federal Circuit, having heard our arguments, to take that step."
PUBPAT's brief can be found at PUBPAT in the Federal Circuit.