In addition to the papers cited below, it appears that at least some of the papers presented at the February 2017 University of Texas Patent Damages Conference Part 2 have now been published. I'll have a separate post on these shortly.
1. Daniel Harris Bream has posted a paper on ssrn titled Grading Patent Remedies: Dependent Claims and Relative Infringement, 84 Brooklyn L. Rev __ (forthcoming 2018). Here is a link to the paper, and here is the abstract:
Patents define an inventor’s exclusive rights by reciting essential aspects of the invention in sentences called claims. The claims are drafted in varying degrees of technical specificity, such that each claim is legally distinct—some may be valid or infringed while others are not. Most commonly, this variation is accomplished by using a combination of “independent” and “dependent” claims. Independent claims stand alone, while dependent claims incorporate by reference all the features recited in the independent claims but go on to add further features or details. The result is a range of potential infringing activity that triggers liability, from the broadest, most conceptual claims to the narrowest, most concrete claims.
Yet when it comes time to remedy infringement, this range of infringement is too often treated as meaningless. Parties rarely bother to distinguish between claims when assessing damages or injunctive relief. And courts hold, for example, that damages owed for infringing one claim is no different than the damages for infringement of any other claim in the patent. This is not consistent with the law or common sense. Not every claim is of equal technological or societal value, nor is infringement of every claim equally harmful to the patent owner. Parties and courts should start paying more attention to the relative significance of the patent claims involved.
This article focuses on dependent claims as a particularly useful vehicle for evaluating relative patent remedies between claims. Any two patent claims can be compared, though their relative scopes can be debatable when, for example, two claims are directed to alternative embodiments. But dependent claims are, by definition, narrower in scope than their base independent claims. Dependent claims also are commonly employed to expressly cover commercial products or preferred embodiments of inventions. As a result, dependent claims often protect the core and most detailed disclosures of the patent specification, occupying the most important competitive space to the patent owner. The relative value of those claims to patent owners, infringers, and the public, should be evaluated as part of any sound patent remedies assessment.
2. Adam MacLeod has posted a paper titled Patent Infringement as Trespass, 69 Ala. L. Rev. 723 (2018). Here is a link, and here is the abstract:
The now-conventional account of patent law holds that infringement is a strict liability offense, meaning that intent is not an element of an infringement claim. This account heightens the apparent injustice of patent law’s special knowledge problem, that as ambiguous descriptions of intangible resources, patent claims do not sufficiently make potential infringers aware of a patentee’s right to exclude. Particularly in the age of so-called “patent thickets,” clusters of patents of variable merit which are indistinguishable from each other and from prior art, strict liability for infringement seems rather hard.
These problems reflect a conceptual misunderstanding. When infringement is understood as a species of trespass, as it was long described in American law, the various aspects of infringement doctrine fall into place. Common law traditionally recognizes three forms of trespass. Together, those three forms explain all of infringement doctrine as a coherent whole and resolve the apparent injustices that seem problematic on the conventional account of infringement. The only aspect of infringement doctrine that does not fit the trespass picture is the four-factor interpretation of eBay, which is contrary to the Justices’ insistence in eBay that they were neither overturning patent infringement doctrine nor disturbing traditional equitable maxims.