Even assuming the inadequacies of the writer and the index are repaired, a third key insufficiency of the disclosure function lies in the reader. The patent syste***egal incentive not to read patents stemming principally from the rule of willful infringement is a systemic concern that other scholars stress.222According to this rule, though patent infringement is akin to a strict-liability offense,223 a court has the authority to award up to treble damages to a patentee when it finds an infringer to have acted willfully.224 Though the Federal Circuit has not precisely defined the contours of willful infringement, the court has elaborated that it requires at least objectively reckless infringement,225 as to which “the primary consideration is whether the infringer, acting in good faith and upon due inquiry, had sound reason to believe that it had the right to act in the manner that was found to be infringing.”226 Because infringers would rather not pay treble damages, firms aware of the willful-infringement rule—that is, most companies—routinely advise their employees not to read outside patents, thereby avoiding the risk of any knowledge of relevant patents and thus any willful infringement.227
That said, individuals and firms are still acting unreasonably if they make or market new products in ignorance of existing patents, possibly infringing them willy-nilly. The patent system theoretically encourages inventors to read patents by imposing as conditions of patentability the novelty and no obviousness of the invention in light of others’ patents (or other prior art);228 an inventor would rationally want to be aware of others’ patents to know whether his invention is patentable. Review of patents to determine whether an already-developed product infringes any of them, however, has not resulted in scientists and technologists reading patents to inform their own research in innovating in the first place, a principal purpose of the disclosure function.229 Therefore, the rule of willful infringement hinders the patent system’s disclosure function.
The concept of willful infringement is, as with much of patent law, about drawing a fine line between the public interest of allowing society some form of access to patented inventions and protecting the exclusive patent right. That is, the rule severely discourages certain egregious instances of infringement. However, the rule also has the side effect of limiting the utility of disclosure. Excising this disincentive to read patents— at the very least by creating a safe harbor for inventors reading a patent while involved in their technical research so long as there is no intentional infringement—is thus imperative to improving the disclosure function.
To invigorate disclosure, not only might the legal disincentive to read patents be removed, but affirmative incentives to read patents might be constructed, a solution not previously offered. One might; for instance, reward a scientist’s proven review of patent documents at the research stage with accelerated patent examination should that research result in a patent application.
In sum, to improve the incentive to read patent documents, which is a critical aspect of operational disclosure, it is vital to remove—if not reverse— the penalty of willful infringement as applied to reviewing patents to inform follow-up
innovation.