Enhanced Damages for Patent Infringement: A Normative Approach
21 Pages Posted: 18 Aug 2016
Date Written: August 16, 2016
In Halo Electronics v. Pulse Electronics the Supreme Court granted greater discretion to lower courts to enhance damages for patent infringement. This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society’s welfare. Patent damages should therefore balance society’s interest in encouraging innovation against the need to regulate infringement incentives. Although the analysis here is mostly normative and draws heavily on the economic theory of penalties, the aim of this paper is to provide a set of practical guidelines courts can follow in explaining, justifying, and developing rules to structure the discretion that Halo has returned to them.
Keywords: patent infringement, enhanced damages, optimal patent infringement damages, loss internalization, gain elimination, damages multiplier, Halo Electronics
Suggested Citation: Suggested Citation