Working Paper No. 07-02:
The Angel is in the Big Picture: A Response to Lemley
Date Posted: 2007
Under current law, independent invention is no defense to patent infringement. In another paper, the author proposes that independent invention be recognized as such a defense. Mark Lemley, in his Comment about that paper, expresses three reservations concerning the author's proposed reform and also suggests four alternative reforms that are less ambitious than the author's. The instant paper responds to Lemley's Comment, conceding that two of his reservations are more or less valid and that two of his alternative reforms are viable. More work is needed to determine whether either of these alternative reforms is superior to the author's proposed reform. Which reform is superior depends ultimately on the extent to which independent invention is a function of forces exogenous to the patent system.