In order to further the objective of the patent system and maximize the public’s incentive to innovate, it is imperative that the patent laws maintain a balance between the interests of patent owners in excluding others from their patents and the interests of society in the continual progress of technology. The current law in willful infringement analysis upsets this balance with the affirmative duty of due care, which shifts the burden of proof in patent infringement suits from the plaintiff to the alleged infringer. The affirmative duty places a heavy burden on the public and is inconsistent with various common law concepts. This comment proposes, as a remedy to these current inefficiencies in the patent law, to remove the affirmative duty from willful infringement analysis.
Kevin J. Kelly, Placing the Burden Back Where It Belongs: A Proposal to Eliminate the Affirmative Duty from Willful Infringement Analyses, 4 J. Marshall Rev. Intell. Prop. L. 509 (2005)