Patient Patents

30 Pages Posted: 5 Mar 2017 Last revised: 9 Oct 2017

See all articles by Douglas Lichtman

Douglas Lichtman

University of California, Los Angeles (UCLA) - School of Law

Date Written: February 28, 2017


Until recently, successful patent plaintiffs would almost always be awarded injunctions against future infringement. Thanks to a recent change in remedies jurisprudence, however, patent plaintiffs today are often denied injunctions and awarded, instead, ongoing royalties. This change was made for reasons that have nothing to do with the pace of litigation. But the change turns out to meaningfully reduce the cost of delay. After all, delay is costly in cases that possibly involve injunctions because, in those cases, every extra day of litigation is another day during which the accused infringer might wrongfully use the patented technology. In cases without injunctions, by contrast, delay simply takes a day for which the accused infringer might have been paying a court-ordered ongoing royalty and transforms it into a day for which the accused infringer might instead pay court-ordered backward-looking damages. Either way, the infringer is paying a fee. Either way, that fee is determined by the court. As a result, certain types of patent cases should today slow down. That is, courts should extend deadlines and even stay certain cases, in that way making room for tailored, accuracy-enhancing delays that previously might have seemed too costly to embrace.

Keywords: patent, remedies, injunction, eBay, ongoing royalties, damages

JEL Classification: O3, O31, O34

Suggested Citation

Lichtman, Douglas Gary, Patient Patents (February 28, 2017). UCLA School of Law, Law-Econ Research Paper No. 17-05, Available at SSRN: or

Douglas Gary Lichtman (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

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