A Proposal to Shore Up the Foundations of Patent Law That the Underwater Line Eroded, A

This article examines the trend of modern patent jurisprudence in the United States, focusing on the development of the law since the landmark Federal Circuit decision of Underwater Devices Inc. v. Morrison Knudsen Co. Inc. in 1983. Specifically, the authors contend that Underwater and its progeny have skewed the proper interpretation and use of the rule against willful infringement, causing litigants to overuse (or even abuse) the willful infringement doctrine and, more importantly, inhibiting one of the twin goals of the patent laws, disclosure of useful inventions. To address this negative trend, the authors propose a change in the standard for a finding of willful patent infringement. In particular, they propose requiring the patentee to notify potential infringes of their possible infringing activity and limiting a finding of willfulness to cases of literal infringement only. This, say the authors, would re-inject meaning into the rule against willful patent infringement, while creating more certainty for potential infringes and fostering the broader policy goals of invention and disclosure