Volume 11, Issue 3 of Zeitschrift für geistiges Eigentum (ZGE)/Intellectual Property Journal (IPJ) is now out. This is the issue that includes articles from the "Conference on Enforcing Patents Smoothly: From Automatic Injunctions to Proportionate Remedies," held at Friedrich-Alexander-Universität Erlangen-Nürnberg in March 2019. I was one of the speakers at that conference, so my article, titled On the Economics of Injunctions in Patent Cases, is one of those published in this issue. Here is the abstract:
Courts in many countries continue to award the prevailing patent owner a permanent injunction, absent exceptional circumstances. First- generation law- and- economics scholarship largely supported this practice, based upon the perceived advantages of injunctions 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. 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.
The full set of contributions includes:
Franz Hofmann, Enforcing Patents Smoothly: From Automatic Injunctions to Proportionate Remedies. Balancing interests via remedies in Intellectual Property Law
Lea Tochtermann, Injunctions in European Patent Law
Daniel Alexander, Injunctions and alternative remedies in English Intellectual Property Law
Thomas F. Cotter, On the Economics of Injunctions in Patent Cases
Jan Bernd Nordemann, Die Aufbrauchfrist im deutschen Wettbewerbs-, Marken und Urheberrecht
Peter Georg Picht, FRAND Injunctions: an overview on recent EU case law
Martin Stierle, Patent Injunctions – Identifying Common Elements
Peter Tochtermann, A judge’s practical perspective on the proportionality of injunctions in patent infringement disputes
Even if your organization does not subscribe to this journal, you might want to get a copy of this very timely issue. (The German government is still mulling over possible changes to the German Patent Act, as this article from JUVE Patent notes.) The papers also should be accessible, for a fee, from the ZGE website shortly.
For previous coverage of the conference on this blog, see here and here. For an earlier version of my paper on ssrn, see here.
Let's see, we're now nine days into the new year, and I've published two law review articles (for the other one, see here) and a Law360 expert analysis; and an edited volume for which I coauthored several chapters has won an award. It's nice to be productive, but I probably won't keep this pace up for the rest of the year. Or maybe I should just take the rest of the year off? Just kidding . . .
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