The Harvard Journal of Law & Technology recently published a Special Symposium Issue on Private Law and Intellectual Property, available here. The webpage states:
The 2017 Symposium on Private Law and IP involved both a conference and a series of short articles that analyze the intersection of private law and intellectual property. The conference, sponsored by Harvard Law School’s Project on the Foundations of Private Law, met in March 2016. The scholars who were in attendance completed fourteen papers that explore many of the topics discussed at the conference, which were published in January 2017.
Several of the papers address (among other matters) legal or economics issues relating to patent remedies, including the following. (The published papers don't appear to have abstracts, so I'm using abstracts, where available, from the ssrn versions of these articles).
1. Tun-Jen Chiang, The Paradox of IP. Here's a link, and here's the abstract:
A central reason for having an IP system (over a prize or grant system) is the assumption that government actors lack the capability to make assessments of IP value. Yet the reality is that judges make assessments of IP value all the time. I call this seeming contradiction the “paradox of IP.”
This Essay does not attempt to offer a solution to this paradox. Rather, my argument is that the IP paradox is illuminative of many IP debates, including debates about IP scope and remedies. Most fundamentally, it illuminates the longstanding debate between those who regard IP as a form of public regulation versus those who regard IP as a form of private property. From the perspective of the IP paradox, the property/regulation debate is about how much fine-tuned control the government is able to, and should, exercise over IP rights. The property/regulation debate is intense and unsettled because it reflects the underlying conflict between the founding anti-calibration premises of the IP system and the empirical reality that our actual IP systems feature pervasive judicial calibration. Without resolving the underlying paradox, we cannot resolve the property/regulation debate.
2. Jorge Contreras, From Private Ordering to Public Law: The Legal Frameworks Governing Standards-Essential Patents. Here is a link to the paper, and here is the abstract:
Technical standard setting, though conducted largely through private organizations, possesses many attributes of a public function. By and large, SDO policies operate effectively to enable competitors to collaborate to develop standards that produce network effects and yield significant social welfare gains. At times, however, internal policing and enforcement mechanisms may not be sufficient to curb abusive behavior by SDO participants, particularly behavior that tends to diminish the value of patent-related commitments made by participants. In these cases, the intervention of public law principles may be appropriate. But while public law regimes such as antitrust and competition law may offer effective means for addressing the most egregious abuses of these commitments, it may be preferable for public agencies to promote legal measures assuring the enforceability of these private commitments on their own terms. Legal support for the enforcement such commitments, and the avoidance of new legal duties, should result in more adaptable and predictable mechanisms for ensuring the continued effective operation of private standardization systems, while the public character of standard setting should continue to be recognized when applicable legal rules call for consideration of the public interest.
3. John M. Golden, Reasonable Certainty in Contract and Patent Damages. Here is a link to the paper. It's not on ssrn, but here's a portion of the Introduction:
This Article contends that private law decisions and doctrines can provide inspiration for judges’ efforts to regulate reasonable royalty awards in patent cases. In particular, the Article focuses on how contract law’s demand for “reasonable certainty” with respect to damages can offer instruction on how courts might flexibly regulate proof of reasonable royalties. The basic contention is that, in both situations, a standard of reasonableness of proof allows courts, in addressing the admissibility or sufficiency of evidence, to take into account context-specific factors not currently highlighted by the standard Georgia-Pacific factors for assessing reasonable royalty damages in patent cases. Such context-specific factors include the size of claimed damages amounts, the relative innocence or blameworthiness of the parties, and the potential availability or non-availability of better methods or evidence for developing a damages calculus. Attention to these context-specific factors can enable courts to tailor their approaches to determining the sufficiency or admissibility of evidence on reasonable royalty awards in ways that support proper ex ante incentives to innovate and to patent, deter opportunistic behavior by infringers and patentees, and encourage use of the best techniques and evidence for assessing damages that are justifiable in light of their cost.
4. Ted Sichelman, Patents, Prizes, and Property. Here's a link to the paper. It's not on ssrn either, but here's a portion of the Introduction:
This Article contributes to the literature [on patents and prizes] in two main respects. First, I extend Roin’s analysis to suggest that the property-rule aspect of patents provides benefits beyond those stemming from mere negotiation with governments-as-payors to more broadly engender greater commercialization incentives than under a prize system. Second, although property rules may distinguish patents from prizes in practice, I contend that the fungibility thesis nonetheless helps to legitimate an important theoretical claim about patents: like prizes, patents — despite often being effectuated via private law means — aim to achieve essentially regulatory, public-oriented goals.