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Abstract

The concept of “copying” has long been involved with various aspects of intellectual property law, particularly in regard to patents and trademarks. In the absence of legally determined exclusive rights, “copying” is permitted, and is in fact, encouraged. However, because the term “copying” carries an undercurrent of disapproval and unfavorable practices, it is a favorite of patentees looking to portray an accused infringer in the most negative light, especially before a jury. Hence, the curse of “copying.” This article will review the current state of “copying” by addressing the substantive precedent in areas where “copying” has traditionally had a substantive effect—willfulness of any accused infringing conduct and obviousness of the patented invention. With respect to “copying” and willful infringement, this article outlines two important considerations that the precedent is weak upon—“‘copying’ what?” and “‘copying’ when?” Lifting the curse requires care and some courage at trial, in view of a precedential framework that is less than favorable to the accused infringer and the pejorative impact the term “copying” will likely have on the jury and the court. These issues will be discussed and suggestions are advanced throughout as to how one might lift the curse once it is pronounced.

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