tag:blogger.com,1999:blog-5202549570150301909.post1802691094749866673..comments2024-03-15T00:21:23.406-07:00Comments on Comparative Patent Remedies : Some Recent (and Not-So-Recent) Scholarship on Patent Injunctions, and a CommentThomas Cotterhttp://www.blogger.com/profile/07145440504421320263noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5202549570150301909.post-68741596071814250592021-07-21T22:45:01.447-07:002021-07-21T22:45:01.447-07:00This comment has been removed by a blog administrator.Brayden Danielhttps://www.blogger.com/profile/08913385603540427261noreply@blogger.comtag:blogger.com,1999:blog-5202549570150301909.post-13172317503673285752021-07-19T15:25:13.003-07:002021-07-19T15:25:13.003-07:00I don't think so. I'm responding to the ar...I don't think so. I'm responding to the argument that in the eighteenth and nineteenth centuries courts often assumed that there was no adequate remedy at law for infringement extending out into the future--because often there wasn't. Courts didn't award future lost profits. They sometimes did award an established royalty that extended to the end of the patent term, however, in which case there was an adequate remedy at law and no reason for an injunction, if I'm understanding the history correctly. But established royalties have always been hard to prove. The third option of awarding a reasonable royalty, even for past infringement alone, wasn't firmly established until the 1910s. So a law court often could award only nominal damages, which is not an adequate remedy.<br />Now that reasonable royalties are a thing, however, it isn't so weird to think of awarding a reasonable royalty for both past and future infringement in some cases, as was once the case for established royalties. It may not have been common to think of it that way until recent years, but so what? The point is that the background assumption against which courts may have assumed there was "no adequate remedy at law" no longer holds. Thomas Cotterhttps://www.blogger.com/profile/07145440504421320263noreply@blogger.comtag:blogger.com,1999:blog-5202549570150301909.post-81090278251207875512021-07-19T15:13:14.189-07:002021-07-19T15:13:14.189-07:00Hi Tom -
On your last point, aren't you putti...Hi Tom -<br /><br />On your last point, aren't you putting the cart before the horse? Because ongoing royalties are available, maybe we don't do injunctions....but that was not the norm. Ongoing royalties are a newish thing, created because courts don't give injunctions. So, I can see one making the argument that if you can get ongoing royalties maybe equity doesn't call for an injunction, but I think the history pretty clearly shows (even post 1910) that it was equity (and injunction) first and only now that this is not the case do we consider whether maybe ongoing royalties are good enough.Michael Rischhttps://www.blogger.com/profile/00878815952765507347noreply@blogger.com