Abstract

This Note proposes a new method for distinguishing the relative merit of inventions and for providing the most valuable inventions with additional protection. Rather than expanding protection under the doctrine of equivalents, the proposed method would increase damages for the infringement of certain meritorious patents. Like any reward in the patent system, this extra benefit would come at a cost to society. However, the societal cost of the proposed method would be less than the cost associated with a revitalization of the current system. The increase in damages would also be limited to the most valuable class of inventions: the pioneers. The overall approach, including the definition of pioneer inventions and the increase in damages, is designed to complement the modern infringement analysis. With a better system in place, courts may once again be willing to provide pioneer inventions with the extra incentives that they deserve.

Part II of this Note discusses how an invention's merit has historically been incorporated into the doctrine of equivalents analysis. Part III examines policy arguments for and against providing pioneer inventions with special treatment. Part IV looks at the current treatment of pioneer inventions within the doctrine of equivalents. Part V proposes a new definition of inventions that are truly worthy of pioneer status. Part VI proposes an incentive system for these inventions, one based on increased damages as opposed to an increased range of equivalents. Finally, Part VII offers some concluding remarks to encourage courts and legislators to find some way to reintroduce an assessment of merit into the patent system.

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