Motivation

Current doctrine governing willful patent infringement is inconsistent with a desire to design a legal system fostering innovation and maintaining or establishing a set of optimal social norms. Under current patent law, willful patent infringers may be subject to treble damages in addition to reasonable attorneys fees. In contrast, copyright infringement holds the potential for criminal punishment, an in fact, patent laws in Japan and Germany, allow a willful patent infringer to face criminal penalty. Still, the opprobrium attached to willful copyright or patent infringement in America is not nearly as large as that attached to the theft of a piece of physical property. My article will argue, contrary to the majority of recent scholarship, that the difference in public perceptions of physical and intellectual property are not because of a deeply-ingrained belief that group collaboration is a fundamental element of innovation. Instead, a third party is less likely to want to inflict criminal punishment on a person who willfully violates copyrights or patents because it is in his self-interest to not punish this individual. Some if not most of the country’s valuable patents and copyrights are concentrated in a relatively small number of large corporations, and in addition, people who are repeat infringers in the realm of copyright are unlikely to advocate criminal punishment that might be imposed on themselves. Because of this clear disconnect between optimal intellectual property system design and the prevailing social norms governing willful patent infringement, policymakers should more seriously consider whether imposing criminal penalties on willful patent infringement would help foster greater innovation.