The true life story of Nikola Tesla reads like a fiction novel worthy of Hollywood in a tale of the great radio controversy. Who did invent radio? Marconi is often credited with the invention, while a discouraged Tesla mostly watched from the sidelines - his contributions and further innovations to radio being silenced during the height of radio's most rapid growth. While Tesla's bizarre personal life may read like a novel by Jules Verne and F. Scott Fitzgerald, this much can be learned from the facts and folklore of the radio controversy: simultaneous discovery and independent development ought to mitigate patent damages in order to fuel innovation. Indeed, unmitigated patent damages might slow or obstruct the progress of science by creating a zone of uncertainty that would-be defendants can enter only at the risk of either losing all research dollars already invested in product development or facing costly patent infringement lawsuits if they bring the independently developed product to market. As a result, innovation may be discouraged only a little less than unequivocal foreclosure in a field of invention. But the simultaneous discovery of an invention by two or more talented inventors working independently is certainly not unknown. And it is as important to the public that competition in developing valuable inventions should not be suppressed as it is when the patentee is protected by a monopoly. Balancing these ostensibly opposing policies can prove an elusive goal, but this is not necessarily so. If the defense proposed in this article is adopted, the patentee will be able to retain its unqualified patent monopoly as to all latecomers to the invention, but a defendant who simultaneously discovered and independently developed the infringing product will be allowed to mitigate damages. This adjustment in the calculation of damages will spark innovation.

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