Enhanced Damages, Litigation Cost Recovery, and Interest

Forthcoming in Patent Remedies and Complex Products: Toward a Global Consensus, Ch. 3 (Brad Biddle, Jorge L. Contreras, Brian J. Love, and Norman V. Siebrasse, eds., Cambridge University Press)

67 Pages Posted: 17 Sep 2018  

Colleen V. Chien

Santa Clara University - School of Law; Stanford Computational Policy Lab

Jorge L. Contreras

University of Utah - S.J. Quinney College of Law

Thomas F. Cotter

University of Minnesota Law School

Brian J. Love

Santa Clara University School of Law

Christopher B. Seaman

Washington and Lee University School of Law

Norman Siebrasse

University of New Brunswick - Fredericton - Faculty of Law

Date Written: September 13, 2018

Abstract

This chapter discusses the law and policy of monetary awards—including exemplary damages and litigation cost recoveries—that go beyond the compensatory damages to which prevailing parties in patent litigation are normally entitled. Up to treble damages are authorized in the United States for knowing infringement, but attorney fees are awarded only in exceptional cases. The rest of the world tends towards the opposite: attorney fees are awarded as a matter of course, but punitive damages are generally prohibited as against public policy. In this chapter we discuss the theory, law, and policy of enhanced damages and attorney fee awards in the U.S., Europe, and Asia. While the availability of enhanced damages and fees can bring accused infringers that might otherwise “holdout” to the table, care must also be taken to ensure that it does not discourage productive learning from patents or challenges to overbroad and vague patents. Rather than endorsing any single set of doctrinal rules, we recommend further research into a number of unanswered questions about current and potential future configurations, in order to inform future policy-making.

Keywords: enhanced damages, punitive damages, exemplary damages, willful infringement, willfulness, litigation costs, disbursements, attorney fees, fee shifting, English Rule, pre-judgment interest, post-judgment interest

JEL Classification: O34, K41

Suggested Citation

Chien, Colleen V. and Contreras, Jorge L. and Cotter, Thomas F. and Love, Brian J. and Seaman, Christopher B. and Siebrasse, Norman, Enhanced Damages, Litigation Cost Recovery, and Interest (September 13, 2018). Forthcoming in Patent Remedies and Complex Products: Toward a Global Consensus, Ch. 3 (Brad Biddle, Jorge L. Contreras, Brian J. Love, and Norman V. Siebrasse, eds., Cambridge University Press). Available at SSRN: https://ssrn.com/abstract=3249212

Colleen V. Chien

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-554-4534 (Phone)
408-554-4426 (Fax)

Stanford Computational Policy Lab ( email )

473 Via Ortega
Stanford, CA 94305-9025
United States

HOME PAGE: http://https://sites.google.com/view/colleenchien/

Jorge L. Contreras

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Thomas F. Cotter

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-7527 (Phone)

Brian J. Love (Contact Author)

Santa Clara University School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

Christopher B. Seaman

Washington and Lee University School of Law ( email )

Lexington, VA 24450
United States
540-458-8520 (Phone)

Norman Siebrasse

University of New Brunswick - Fredericton - Faculty of Law ( email )

P.O. Box 4400
Fredericton, New Brunswick E3B 5A3
Canada
506-453-4725 (Phone)
506-453-4548 (Fax)

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