A Research Agenda for the Comparative Law and Economics of Patent Remedies

Abstract

Over the past two decades, a small but growing number of law-and-economics scholars have begun to apply the standard tools of economic analysis to a field that long had evaded scrutiny by the law-and-economics community, namely the field of comparative law. To date, however, comparative law and economics scholars have devoted relatively little attention to the law of intellectual property - a gap that is in some ways surprising, given the professedly instrumental character of (much of) intellectual property law and policy. This essay, which will appear as a chapter in a forthcoming edited volume titled Global Perspectives on Patent Law (Ruth Okediji & Margo Bagley eds., Oxford Univ. Press), presents a modest effort at remedying this state of affairs, by presenting a proposed research agenda for a comparative law and economics analysis of one specific set of issues within the law of intellectual property: the law of patent remedies. Part I lays out a proposed protocol for the use of economic analysis to better understand, evaluate, and critique the law of patent remedies as it exists both in the United States and abroad. Part II focuses on the two principal remedies for patent infringement, permanent injunctions and monetary damages. In particular, Part II outlines the similarities and differences among various nations’ approaches to injunctions and damages for patent infringement; suggests some possible explanations for, and consequences of, the perceived differences; and proposes some areas which I plan to explore in greater depth in connection with my own pending book project on the topic.

Keywords: patents, remedies, patent remedies, comparative law and economics, injunctions, patent damages