Patent Remedies: Recommendations for International Best Practices
10 Pages Posted: 29 Nov 2016
Date Written: November 28, 2016
Abstract
This paper provides the text of a lecture I presented at Doshisha University in Kyoto, Japan in June 2015 on patent remedies. In the lecture, I present a set of “best practices” intended to better align the enforcement of patent rights with what the theoretical and empirical analysis of these rights suggests would be optimal. Among the topics I touch upon are the conditions under which injunctions must or should be granted; the forms of monetary relief the should be available; the principles that should guide the calculation of monetary relief; and the circumstances, if any, under which should nations award enhanced damages, attorneys’ fees, and interest. I argue that, at the end of the day, there will still be a good deal of healthy diversity among jurisdictions with regard to these issues. But if we can reach tentative agreement that certain practices are indefensible, or at least questionable, from an economic perspective — or even if we only can narrow the range of defensible options — we would have a set of global enforcement practices that might better serve the public interest.
Keywords: Patents, damages, injunctions, royalties, enhanced damages, attorneys' fees, restitution
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