Means and Meaning in Patent Remedies

Texas Law Review See Also, Vol. 92, 2014, pp.13-23

UC Irvine School of Law Research Paper No. 2014-28

12 Pages Posted: 9 Feb 2014 Last revised: 6 Oct 2015

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: February 7, 2014

Abstract

Professor Sichelman’s article on “Purging Patent Law of Private Law Remedies” offers a welcome and useful perspective on the reform of patent remedies. In this comment I critique some of his assumptions regarding the “private” nature of patent and other remedies, then turn to discussing several examples of existing and underutilized tools, such as “reverse liability” rules, that might accomplish much of Professor Sichelman’s agenda without necessarily fomenting a radical re-conceptualization of patent remedies doctrine. Along the way I suggest how deployment of such tools might play out in a variety of current patent controversies, including Sichelman’s example of patent “trolls,” as well as FRAND licensing and pharmaceutical “pay for delay” agreements.

Keywords: patent, injunction, liability rule, property rule, damages, FRAND, Hatch-Waxman, call option, put option, reverse liability rule, patent troll, NPE, non-practicing entity, PAE, patent assertion entity, pay for delay

JEL Classification: K41, O31, O33, O34, O38, L52, L65, H41

Suggested Citation

Burk, Dan L., Means and Meaning in Patent Remedies (February 7, 2014). Texas Law Review See Also, Vol. 92, 2014, pp.13-23; UC Irvine School of Law Research Paper No. 2014-28. Available at SSRN: https://ssrn.com/abstract=2392494 or http://dx.doi.org/10.2139/ssrn.2392494

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

4500 Berkeley Place
Irvine, CA 92697-1000
United States
949-824-9325 (Phone)

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