Download this Paper Open PDF in Browser

Prelitigation Hardball

5 Pages Posted: 12 Mar 2009 Last revised: 9 Jan 2015

Thomas G. Field Jr.

University of New Hampshire School of Law (formerly Franklin Pierce Law Center)

Richard F. Kurz

University of New Hampshire School of Law (formerly Franklin Pierce Law Center)

Date Written: March 10, 2009

Abstract

In situations where some parties infringe intellectual property (IP) rights only if others do, the former can be thought of as secondary and the latter as primary infringers. This comment considers situations where threats directed to parties such as purchasers of allegedly infringing goods, despite being strategically advantageous to IP owners, can be unfair.

All parties, of course, wish to know of potential liability. Primary infringers obligated to evaluate threats suffer no more than than the expense and annoyance of litigation. But the stakes are raised when threats are aimed at purchasers who lack incentives, for example, to conduct independent inquiries or to credit suppliers' assurances of noninfringement. The potential for unfairness is exacerbated because primary infringers, even when they prevail, are unlikely to recover for lost sales.

This comment, building on an earlier one by the senior author, suggests, for example, that district courts need to better document harm generated by false implications in literally true statements. It also suggests that the Federal Circuit should be more willing to halt practices that may confer the sort of leverage eschewed in eBay.

The paper has been published with few changes in the online Germeshausen Newsletter.

Keywords: patent litigation, rights to petition, commercial speech, secondary infringers

JEL Classification: K10, K20, K41

Suggested Citation

Field, Thomas G. and Kurz, Richard F., Prelitigation Hardball (March 10, 2009). Available at SSRN: https://ssrn.com/abstract=1356849 or http://dx.doi.org/10.2139/ssrn.1356849

Thomas G. Field Jr. (Contact Author)

University of New Hampshire School of Law (formerly Franklin Pierce Law Center) ( email )

Two White Street
Concord, NH 03301
United States

HOME PAGE: http://https://law.unh.edu/faculty/field

Richard F. Kurz

University of New Hampshire School of Law (formerly Franklin Pierce Law Center) ( email )

Two White Street
Concord, NH 03301
United States

Paper statistics

Downloads
41
Abstract Views
522