1. Keith Hylton has posted on ssrn a new draft of the paper he presented at the University of Texas Patent Damages Conference this past June, titled Enhanced Damages for Patent Infringement: A Normative Approach. Here is a link to the paper, and here is the abstract:
In Halo Electronics v. Pulse Electronics the Supreme Court granted greater discretion to lower courts to enhance damages for patent infringement. This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society’s welfare. Patent damages should therefore balance society’s interest in encouraging innovation against the need to regulate infringement incentives. Although the analysis here is mostly normative and draws heavily on the economic theory of penalties, the aim of this paper is to provide a set of practical guidelines courts can follow in explaining, justifying, and developing rules to structure the discretion that Halo has returned to them.
2. Justin A. Reddington has published a comment titled To Caesar What Is Caesar's: An Audacious Claim for Punitive Damage Reform in Patent Law, 10 Liberty U. L. Rev. 201 (2016). From the introduction:
In general, tort reform-particularly in the area of damages-has sparked much legal debate by academics, judges, and legislators in the last half century. Frequent large punitive damages awards, increased frequency of punitive damages in general, and the constant enticement of a potential punitive windfall have caused growing concern in the legal community about the structure and application of punitive damage awards. . . . This Comment offers a possible alternative to the continued and non-productive grant of punitive damages as a plaintiffs windfall. But that is not to say that punitive damages themselves are improper. It is clear that punitive damages are, and will always be, an important part of civil litigation. . . . They impose additional punishment on intentional, willful, and wanton tortfeasors by making an example of them to the public, and by providing sufficient, quasi-criminal punishment to deter the offender from committing the offense in the future. What is unclear-and what has been increasingly questioned of late'-is whether plaintiffs should be granted those awards. The damages are levied for the purpose of reforming or deterring an offender, and are only so imposed in cases where the offender's conduct merits their use. Technically, the plaintiff is already made whole by a compensatory damages award. Should the plaintiff be awarded a windfall? Would that windfall serve as a significant incentive to other potential plaintiffs (and their lawyers) to bring causes of action that they would not otherwise undertake? Can the damages be given to a more deserving entity and still serve the interests of justice?
This Comment seeks to answer these questions, and to show that a split recovery system for punitive damages-if adopted by the Federal Patent Code-would be best suited to serve the interests of justice in patent claims and to help allay the disturbing upward trend in punitive damage awards in American courts. . . .