tag:blogger.com,1999:blog-5202549570150301909.post5560784430844294927..comments2024-03-15T00:21:23.406-07:00Comments on Comparative Patent Remedies : Two interesting recent U.S. cases on patent remedies: or, why can't U.S. patent courts be more like antitrust courts?Thomas Cotterhttp://www.blogger.com/profile/07145440504421320263noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5202549570150301909.post-87998252446984657482014-03-18T05:57:38.366-07:002014-03-18T05:57:38.366-07:00Good point re other fields. There are also repeat ...Good point re other fields. There are also repeat players in commercial law, namely banks and other lending institutions. My sense is that commercial law is relatively sophisticated, though not to the same degree as antitrust, perhaps because a lot of the concerns relate to certainty rather than more subtle economic concepts. It would be interesting to know whether the law is systematically more economically sophisticated in areas with repeat players.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.comtag:blogger.com,1999:blog-5202549570150301909.post-784399311487561232014-03-18T05:43:36.310-07:002014-03-18T05:43:36.310-07:00That's an interesting point. Of course, there...That's an interesting point. Of course, there are other administrative agencies that are repeat players in certain types of cases and that could develop similar expertise. (And maybe they do; I'm not very well versed in fields such as securities or environmental law.) In the U.S., the USPTO argues a fair number of cases in court, though mostly in cases in which it has rejected an application, not in any cases involving damages calculations. Thomas Cotterhttps://www.blogger.com/profile/07145440504421320263noreply@blogger.comtag:blogger.com,1999:blog-5202549570150301909.post-67643143347798115642014-03-18T05:06:48.070-07:002014-03-18T05:06:48.070-07:00It seems to me that antitrust is the outlier in it...It seems to me that antitrust is the outlier in its economic sophistication. There are plenty of other areas besides patent law that could use a strong dose of economic reasoning. I would speculatie that there is a chicken and the egg problem. Sophisticated economic reasoning is hard, so litigants won’t engage in it unless they have to (it is the law), but judges won’t make it the law until it is persuasively argued before them on a regular basis. Before an economic analysis is established law, a litigant who argues it faces a substantial persuasive hurdle, and there is a large litigation cost in developing the argument, convincing the judge on a policy basis, and then finding a hook into existing non-economic law. This means there is a significant positive externality to shaping the law towards economic rationality. What is different about antitrust is that there is a single repeat player, namely the FTC, which can largely internalize that externality. Once the FTC was on board with economic reasoning, the defendants had to acquire the same expertise, and it was regularly argued before the courts, who turned it into law, so that now everyone has to use it.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.com