Is “independent invention” a cure against trolls in that it can be argued that infringement cannot be established in case of an “independent invention”? No it is not. A lot of confusion, misunderstandings, half-truths, nonsensical quasi-lawerly talk exists around the term “independent invention“. The term is often “spittered” about as means against patent infringement actions by NPEs or patent trolls, but has no basis in patent law and lacks a common understanding and agreement on what it means as it is often used in a nonsensical way. Independent creation in copyright is sometimes used to define the term “original work”, a work that has been created “independently” to establish whether a “work” is copyright protected.
So, let us try to see if we can make sense out of it. What is it what is it not?
Let us start by just see what the two words mean when taken individually, taking a common dictionary as a guide and then see if this helps to understand the meaning when the two words are being combined. Then we can see whether in patent law this term helps or confuses. My gut feel is that the problem arises when these terms – which make perfectly sense when looked at separately – start to be come nonsensical when taken together. The effect of nonsense is often caused by an excess of meaning, rather than a lack of it.
“Independent” is defined as, (…),
- free from the influence, guidance, or control of another or others; self-reliant: an independent mind.
- not determined or influenced by someone or something else; not contingent: a decision independent of the outcome of the study.
When this definition is taken in relation to “invention” it means that something is invented “free from the influence guidance or control of another or others”. That in fact could very well happen. The romantic idea of a lonely “garage” inventor, somewhere on the planet inventing while secluded from the outside world, no access to internet, not going to peer group meetings where current R&D is being discussed, nor sharing ideas with twitters, colleagues, open source groups, friends or whomever, is unreal. It’s definitively more realistic to think that, especially in a time with access to online databases, unlimited internet resources and a tendency to work in “open innovation groups” same inventions can arise at different places by engineers researchers or other individuals looking for the same solution of the same technical problem. So this would mean that an independent invention can be created around the same time by different people at different places, unrelated to each other and without knowing each other’s work. But does that mean that it is also a remedy against infringement?
It is not. The answer is relatively simple: not every invention is patentable. Lot of inventions that were done “independently” will never lead to a patent as the requirement of novelty is almost unilaterally defined as “worldwide novelty”, meaning that any publication (patent application, academic paper, even a disclosure in a technical blog – so any publicly available source) destroys the “novelty” of an invention and will hence not be patented. If an invention is made independently on two different locations by different people – again, it will certainly happen – this will not lead to a patent for the party who filed after the other already published its invention (e.g. by making a patent application describing the invention public).
This is fundamental for any patent law in the world. Unless we want to get rid of patents all together – advocated by some – “independent invention” in anathema in patent law.