Cotter on the Economics of Injunctions

I recently posted on ssrn a draft of a paper titled On the Economics of Injunctions in Patent Cases.  This paper is based on the presentations I gave at two conferences earlier this year, “Enforcing Patents Smoothly: From Automatic Injunctions to Proportionate Remedies,” held at Friedrich-Alexander Universität Erlangen-Nürnberg, and “Injunctions and Flexibility in Patent Law–Civil Law and Common Law Perspectives,” held at Ludwig Maximilian University in Munich.  (For previous discussion of these conferences, see here and here.)  I understand that my paper will be published in a forthcoming issue of the German journal Zeitschrift für Geistiges Eigentum/Intellectual Property Journal.  Anyway, here is a link to the ssrn version, and here is the abstract:

Courts in many countries continue to follow the traditional practice of awarding the prevailing patent owner a permanent injunction, absent exceptional circumstances. First-generation law-and-economics scholarship, building on Calabresi and Melamed’s work on property and liability rules, largely supported this practice, based upon the perceived advantages of injunctions (as opposed to damages awards) in inducing bargaining and reducing valuation errors. More recent scholarship, however, has questioned the wisdom of automatic injunctions, particularly in cases in which the conditions conducive to patent holdup are present—among them, cases involving standard essential patents, patents incorporated into complex, multipatent devices, and actions brought by patent assertion entities.

Building upon this more recent work, I argue that the social benefits and costs of injunctions vary depending on the circumstances. To assist policymakers in rendering decisions in the real world, I propose two simplifying assumptions that would enable courts to compare the expected cost of holdup with the expected cost of valuation error. A simple set of recommendations follows, namely that courts generally should (1) grant injunctions when the probability of holdup is low, and (2) deny them when the probability of holdup is great and the expected harm from valuation error low to moderate. For indeterminate cases—for example, when the probability of holdup and the expected harm from valuation error are both high—courts can mitigate both risks to some degree by granting injunctions subject to stays pending design-around.

Also on the topic of injunctions, readers may be interested in IP2Innovate's document titled Supporting Innovation in Germany Through a Balanced Patent System, which argues for (1) legislation authorizing German courts to take proportionality into account in deciding whether to grant injunctions, and listing some relevant factors; (2) reducing the effect of the "injunction gap," that is, the time between the conclusion of infringement and validity proceedings (which are bifurcated in Germany); and (3) requiring PAEs to post bonds to cover attorneys' fee awards.