Patent Injunctions, Economics, and Rights

14 Pages Posted: 15 Jun 2018 Last revised: 6 Jul 2018

See all articles by Adam Mossoff

Adam Mossoff

George Mason University - Antonin Scalia Law School, Faculty

Eric R. Claeys

George Mason University

Date Written: June 4, 2018

Abstract

This essay uses ongoing debates about the remedies available for patent infringement to explore some broader questions about normative legal theory. The essay was written for a festschrift for Richard Epstein. Throughout his career, Epstein has systematically defended classical liberal views about property rights, freedom of contract, and private ordering—like the presumption that a patent holder deserves an injunction against ongoing infringement. When that presumption was called into serious question by the Supreme Court’s 2006 decision in eBay v. MercExchange, Epstein defended the traditional presumption on law and economic grounds. We agree with Epstein that injunctions should be a presumptive remedy for patent infringement. But we have learned from Epstein that foundations matter, and we have reservations about the consequentialist and law and economic grounds on which Epstein defends injunctions in patents and property rights more generally. In this essay, we explain why a Lockean theory of rights supplies a more satisfying foundation for property rights and markets than consequentialist and law and economic foundations.

Keywords: corrective justice, John Locke, natural rights, natural law, eudaimonism, private law, property rule, liability rule, efficiency, utilitarian, reasonable royalty, FRAND, patent hold up, patent hold out, royalty stacking

Suggested Citation

Mossoff, Adam and Claeys, Eric R., Patent Injunctions, Economics, and Rights (June 4, 2018). George Mason Law & Economics Research Paper No. 18-17. Available at SSRN: https://ssrn.com/abstract=3197275

Adam Mossoff (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9577 (Phone)

Eric R. Claeys

George Mason University ( email )

3301 Fairfax Drive
Room 420
Arlington, VA 22201
United States
(703) 993-8247 (Phone)
(703) 993-8202 (Fax)

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