Patent Injunctions, Economics, and Rights
18 Pages Posted: 15 Jun 2018 Last revised: 23 Jun 2019
Date Written: June 21, 2019
This essay, written for a festschrift for Richard Epstein, uses current debates about patent remedies to explore fundamental questions about normative legal theory. Epstein has long defended classical liberalism, property rights, and private ordering, including the presumption that a patent owner deserves an injunction against ongoing infringement. We agree with Epstein that injunctions should be a presumptive remedy for infringement, but we have reservations about his consequentialist, law and economic justification for this position. Law and economic justifications struggle to explain why the state may use coercion and the implied threat of force to enforce policies written into law. By contrast, rights-based justifications can supply such an explanation, and we illustrate by showing how a Lockean theory of rights based in a meta-ethics of flourishing (eudaimonism) justifies both a patent and an injunctive remedy for violations of a patent. We also address misconceptions that Epstein and other consequentialists hold toward rights-based justifications: that such justifications make policy prescriptions without considering social consequences, and that they are not as determinate as consequentialist justifications.
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
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