Sorry for the overdose of IP law recently, I plan to return to local-government topics ASAP.
But my recent article discussing criminal enforcement of copyright caused me to wonder about why patent infringement is not a crime in the United States (aside from falsely asserting a product is patented or forging the seldom-used “letters patent”).
Why this disparity between different forms of IP protection? It surprised me how many different theories emerge. For example, professor Irina Manta lists three possible justifications in her article “The Puzzle of Criminal Sanctions for Intellectual Property Infringement” (footnotes omitted):
There could be a moral or utilitarian distinction between soft IP and patents, and the differing availability of criminal sanctions may be warranted because infringers of soft IP cause more harm and/or require harsher punishments for deterrence than infringers of patents. Alternatively, perhaps criminalizing soft IP infringement provides the proper balance of incentives for creators by giving them the safety of added protections for their works, whereas it would overly deter inventors in the patent context. Another possible explanation for the distinction is a public choice rationale: while a number of industries lobby for stronger protection for soft IP (especially copyright), different industries are at odds with one another regarding the proper level of protection for patents.
The Executive Office of the U.S. Attorneys also has commented on this disparity in the third edition of its training handbook “Prosecuting Intellectual Property Crimes,” which notes on page 246 the distinctions between patents and other forms of intellectual property:
Although patents and copyrights share a common constitutional source (and the concomitant requirement that these exclusive rights are for “limited times”), they differ in several meaningful respects. First, copyrights grant an author the right to exclude certain uses of the author’s expression of an idea contained in an “original work of authorship,” whereas patents grant an author the right to exclude others from making, using, and selling devices or processes that embody the claimed invention. Second, in exchange for granting the patentee this right to exclude, the patentee must publicly disclose the invention. Eldred, 537 U.S. at 216. “For the author seeking copyright protection, in contrast, disclosure is the desired objective, not something exacted from the author in exchange for the copyright.” Id. at 216. Third, a copyright gives the holder no monopoly on any knowledge or idea; a reader of an author’s writing may make full use of any fact or idea acquired by reading the writing. See17 U.S.C. § 102(b). A patent, on the other hand, gives the patentee a monopoly on his invention to prevent the full use by others of the knowledge embodied in the patent. Eldred, 537 U.S. at 217.
It is also worth considering the difference between a patent and a trade secret. The first difference is naturally that trade secret information is protected only if it is secret (see Section IV.B.3.a.v. of this Manual), whereas a patent is protected even after disclosure. During the patent process, a trade secret contained in a patent application may lose its trade secret protection through disclosure only to gain patent protection. (See Section IV.B.3.a.vi. of this Manual). Second, a patent gives its owner an exclusive right to his invention, even against another who discovered the patented invention independently, whereas a trade secret, like a copyright, gives its owner no protection against independent discovery. Confold Pac., Inc. v. Polaris Indus., 433 F.3d 952, 958-59 (7th Cir. 2006) (Posner, J.).
I think that the most compelling explanation may be that patents, unlike copyright, are especially at risk of being too broad. This is particularly so in industries like software, where an understaffed patent office cannot sufficiently limit incoming applications.
Although Abraham Lincoln once famously remarked that the patent system “added the fuel of interest to the fire of genius,” today many people see the patent system as enabling arsonists: Aggressive patent holders who use overbroad patents and costly lawsuits as a means to burn the competition.