Enhanced Damages for Patent Infringement: A Normative Approach

21 Pages Posted: 18 Aug 2016

See all articles by Keith N. Hylton

Keith N. Hylton

Boston University - School of Law

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

Hylton, Keith N., Enhanced Damages for Patent Infringement: A Normative Approach (August 16, 2016). Review of Litigation, Forthcoming; Boston Univ. School of Law, Law and Economics Research Paper No. 16-31. Available at SSRN: https://ssrn.com/abstract=2824665 or http://dx.doi.org/10.2139/ssrn.2824665

Keith N. Hylton (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-8959 (Phone)
617-353-3077 (Fax)

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