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Principles for Patent Remedies


John M. Golden


The University of Texas at Austin - School of Law

February 16, 2010

Texas Law Review, Vol. 88, pp. 505-592, 2010
U of Texas Law, Law and Econ Research Paper No. 179

Abstract:     
Once a joint domain of inertia and arcana, questions about remedies for patent infringement now generate heated public debate. A recent Supreme Court decision has spawned conflicting answers from courts and commentators about when courts should issue injunctions forbidding continued infringement. On Capitol Hill, Orwellian-named entities representing a variety of industry heavyweights have poured millions into lobbying for or against patent reform bills, with a major focus of dispute being legislative language regarding damage awards.

Amidst all the commotion, one fact remains clear. We have little specific sense of what the value of patent remedies either generally is or should be. Such ignorance might inspire despair. I argue that it in fact suggests that policy making should take guidance from three principles of adaptation and two principles of implementation: (1) nonabsolutism in the formulation and application of legal doctrine; (2) antidiscrimination with respect to business models; (3) learning, an interest in fostering the production of useful information; (4) administrability; and (5) devolution of significant decisional responsibility to private or government actors nearest to the facts of an individual case. Although these principles do not uniquely determine any single best system of patent remedies, they provide a framework for assessing the relative merits of policy proposals and for suggesting ways in which proposals can be improved. In particular, the principles have implications for current debates regarding the availability of permanent injunctions, the calculation of reasonable-royalty damages, and the possibility of remedial exemptions for prior users or independent creators.

Number of Pages in PDF File: 89

Keywords: patents, patent infringement, remedies, injunctions

JEL Classification: K42, O34

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Date posted: February 16, 2010 ; Last revised: March 12, 2013

Suggested Citation

Golden, John M., Principles for Patent Remedies (February 16, 2010). Texas Law Review, Vol. 88, pp. 505-592, 2010; U of Texas Law, Law and Econ Research Paper No. 179. Available at SSRN: http://ssrn.com/abstract=1553804

Contact Information

John M. Golden (Contact Author)
The University of Texas at Austin - School of Law ( email )
School of Law
727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1469 (Phone)

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