Some New Papers on Remedies

1.  Janice Mueller has posted on ssrn a forthcoming update for Volume II of Mueller on Patent Law titled Enhanced Damages and Willful Patent Infringement.  Here is a link, and here is the abstract: 

The Federal Circuit's landmark 2007 decision in In re Seagate Tech., LLC, required that in order to prove willfulness a patentee must establish, inter alia, that the infringer acted in an objectively reckless manner. The Seagate standard significantly raised the bar on willfulness, making it more difficult for a patentee to establish than under the Federal Circuit’s previous standard. Whatever the actual impact of Seagate, the legal framework it established in 2007 may well be mooted or modified by the Supreme Court’s 2015 grant of certiorari in two more recent willfulness cases, Halo Elecs., Inc. v. Pulse Elecs., Inc., and Stryker Corp. v. Zimmer, Inc. Notably, the Federal Circuit appears to anticipate that the Supreme Court’s forthcoming decisions in Halo and Stryker may work a significant change in the law of enhancement; on November 17, 2015, the Circuit issued a rare order holding in abeyance, until the Supreme Court decides Halo and Stryker, a petition for rehearing en banc in Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd. This chapter excerpt analyzes these and other leading Federal Circuit and Supreme Court cases concerning enhancement of compensatory damages under 35 U.S.C. § 284, considering primarily enhancement based on a finding of willful infringement.

2.  Lance Wyatt has published a paper titled Keeping Up with the Game:  The Use of the Nash Bargaining Solution in Patent Infringement Cases, 31 Santa Clara High Tech. L.J. 427 (2015).  Here is a link to the paper, and here is the abstract:

Determining damages is an integral stage in the patent litigation process. Since 1970, reasonable royalty damages have been calculated using the factors set forth in the seminal decision Georgia-Pacific Corp. v. United States Plywood Corp. However, these factors are prone to manipulation and abuse by damages experts. To address this abuse, damages experts have utilized a solution to a two-person bargaining situation, the Nash Bargaining Solution (NBS), as a method to calculate reasonable royalty damages in patent infringement cases. Since the introduction of NBS in patent infringement cases, courts have been reluctant to admit the use of the NBS to calculate reasonable royalty damages because damages experts often fail to apply the specific facts of the case to their calculations or adequately explain the NBS.

This article argues that courts should allow the use of the NBS by damages experts as a viable method to calculate a reasonable royalty in patent infringement cases, despite recent backlash at the Federal Circuit Court of Appeals. First, the NBS, if properly used, adequately applies the facts of each specific case to its analysis. Second, the NBS is grounded in sound, unmanipulable economic theory that can be adequately explained. Finally, the NBS is more impartial than the Georgia-Pacific analysis.

3. Mengxi Zhang and Keith Hylton have posted a paper on ssrn titled Optimal Remedies for Patent Infringement.  Here is a link to the paper, and here is the abstract:

This paper derives optimal remedies for patent infringement, examining damages awards and injunctions. The fundamental optimality condition that applies to both awards and injunctions equates the marginal static cost of intellectual property protection with the marginal “dynamic” benefit from the innovation thereby induced. We find that the optimal damages award may be greater than (or less than) the standard “lost profits” measure, depending on the social value of the innovation. When the social value of the patent is sufficiently high, the optimal award induces socially efficient investment by giving the innovator the entire social value of her investment.