Taking the Regulatory Nature of IP Seriously

Abstract

Ted Sichelman’s paper in the Texas Law Review makes an important contribution by encouraging us to take the essentially regulatory character of IP seriously, arguing that public, not private, interest should determine remedies. In this comment, I both extend and critique his approach, suggesting that private law remedies may play an important role even in a patent system properly understood as public law rather than property law. Nonetheless, understanding the regulatory nature of patent remedies has some significant implications for setting those remedies, including the recognition that the optimal patent damages award will sometimes be $0.