Lufthansa v. Astronics: Disgorgement of Profits, Part 3

This final installment of posts  on the Court of Appeals for England and Wales’ decision in Lufthansa Technik AG v. Astronics Advanced Electronic Systems, [2026] EWCA Civ 964, will discuss Lord Justice Arnold’s analysis of the correct method of apportionment, the double recovery issue, and interest, and the two short concurring opinions by Lord Justices Nugee and Lewison.  Familiarity with the first two posts (here and here) in the series is assumed.

On the issue of apportionment, the question is how to estimate the benefit that accrued to the defendants from their use of the patented invention.  Here, the defendants “had pleaded four alternative ways of apportioning their profits: (i) patent counting, (ii) the cost of the Components, (iii) the causative effects of the Patent and other factors and (iv) by reference to the 2014 Teaming Agreement [between Lufthansa and KID Systeme, a division of Airbus],” but “their primary case in closing submissions was based on the 2014 Teaming Agreement” (para. 71).  The trial judge therefore "used a royalty rate derived from the 2014 Teaming Agreement between Lufthansa and KID to determine the appropriate percentage of Astronics’ profits which were attributable to the Patent. He then applied the same percentage to Panasonic’s profits” (para. 194); further, “the judge had no alternative to the licence-based method of apportionment, because he had rejected the principal alternative method advanced by the Defendants at trial (patent counting) on procedural grounds and Lufthansa did not put forward any other method of apportionment” (para. 196).  Lufthansa argues, however, that a license typically allocates the expected benefit from the use of the invention between the licensor and the licensee, whereas the disgorgement remedy should entitle the patentee to 100% of the benefit accruing to the defendant from the use of the invention.  In response, Lord Justice Arnold writes that “the fact that a licence typically involves 25-50% of the expected overall economic benefits being received by the licensor is not inconsistent with using the royalty payable as a guide to the relative importance of the patent compared to other factors which contribute to the total profits generated by the licensee, particularly in the absence of any better guide” (para. 200); but while Lufthansa might have been entitled to some sort of “uplift to the royalty derived from the 2014 Teaming Agreement,” “the short answer to this is that Lufthansa did not invite the judge to apply any such uplift at trial,” and “[i]t is too late for Lufthansa to do so now” (paras. 198, 201). 

There are additional arguments Lufthansa makes against the trial court’s use of the implied royalty (which it calculated at 13% of net profits), but the court rejects these in fairly brief fashion (paras. 202-09), and I won’t belabor the details here.  There is one issue, however, with regard to which the Court of Appeal sides with the defendants, specifically the profits to be awarded on Astronics’ and Panasonic’s supply of “components for assembly by installers (such as Lufthansa’s competitors) or by seat manufacturers (such as Safran)" (para. 210).  Astronics and Panasonic’s argument is the following (para. 211):

i) KID was, pursuant to the 1998 Teaming Agreement, Lufthansa’s exclusive licensee under the Patent within the meaning of the 1977 Act in respect of at least the acts which Astronics and Panasonic carried out in infringement of the Patent i.e. the supply of components. This depends on whether the 1998 Teaming Agreement was an exclusive licence, as Astronics and Panasonic contend, or a sole licence, as Lufthansa contends (“the Construction Issue”).

 

ii) As outlined above, KID subsequently asserted a claim for infringement against Astronics’ predecessor, GD [General Dynamics], on the basis that it had a “right of exclusive use”. However, it compromised that claim for good and valuable consideration (a cross-licence) in the 2003 Settlement Agreement. That compromise included KID’s right to claim profits derived from infringement from Astronics and its customers (“the Compromise Point”).

 

iii) Astronics and Panasonic have the benefit of that compromise because it passed to Astronics and its customers when Astronics bought AES pursuant to the 2005 Asset Purchase Agreement (“the Succession of Benefit Issue”).

 

iv) The profits which Lufthansa is entitled to do not include the profits due to KID that were the subject of the compromise. Lufthansa’s claim to profits must therefore be reduced to account for KID’s (compromised) share of the profits (“the Single Pot of Profits Issue”).

 

v) That apportionment should be achieved by allocating to KID 50% of Astronics’ and Panasonics’ profits that were derived from the infringement, for the duration of the 1998 Teaming Agreement (i.e. until 31 December 2014), and reducing the sums payable to Lufthansa accordingly (“the KID Allocation Issue”).

The judge further notes that "the logic of Astronics’ and Panasonic’s argument is that Lufthansa’s profits should be reduced by 100% of the relevant profits. Nevertheless Astronics and Panasonic offered, if successful on the other two issues, to accept 50%. During the course of argument Lufthansa accepted that offer" (para. 213).  So the question then is whether, applying German contract law principles to interpret the 2003 Settlement Agreement, English law would consider the license Lufthansa granted KID under the 1998 Teaming Agreement to be an exclusive license; and if so, whether English law would therefore preclude Lufthansa from claiming any share of the profit that GD’s successors in interest were obligated to turn over the KID under the 2003 Settlement Agreement through December 31, 2014.  There follows a detailed discussion of the relevant legal principles, at the conclusion of which Lord Justice Arnold finds, contrary to the trial court, that the license was exclusive.  The question then “is what happens if a patent subject to an exclusive licence is infringed, and the exclusive licensee compromises its claim against the infringer. Can the patentee nevertheless claim all of the profits made by the infringer? Lufthansa contends that the answer to this question is yes, while Astronics and Panasonic contend that the answer is no. It is common ground that there is no authority which addresses this question. The answer to it depends on the proper interpretation of the statutory provisions” (para. 251).  To cut to the chase, Lord Justice Arnold determines that

Although the patentee and an exclusive licensee may each sustain different losses due to an infringement, which they can each recover as damages, there is only one pot of profits derived by the infringer from the infringement. It cannot be right for both the patentee and the exclusive licensee to have an equal claim to that pot of profits . . . .

 

The answer to this conundrum is in my judgment provided by the concluding words of [Patents Act] section 67(2): “the profits derived from the infringement, so far as it constitutes an infringement of the rights of the exclusive licensee as such”. To the extent that the rights conferred by the patent are subject to an exclusive licence, the exclusive licensee stands in the shoes of the patentee. To that extent, it is therefore the exclusive licensee which is entitled to the profits to the exclusion of the patentee. If the exclusive licence covers a sub-set of the rights conferred by the patent, then outside the scope of exclusive licence the patentee remains entitled to the profits. In such cases the patentee and the exclusive licensee are each entitled to a share of the profits. Thus it may be necessary to apportion the profits as between the patentee and the exclusive licensee after one has apportioned the total profits between those derived from the infringement and those derived from other factors.

 

This approach is in my view supported by the fact that an account of profits is an equitable remedy. A court of equity would surely take into consideration the rights of both the patentee and the exclusive licensee, and would not allow the patentee to scoop all of the profits derived from the infringement (paras. 256-58).

This issue, then, is resolved in favor of Astronics and Panasonic, who will be entitled to an appropriate reduction in the profits awarded.

The final two topics addressed by Lord Justice Arnold are double recovery and interest.  As noted in one of my earlier posts, there is still ongoing litigation between these parties in France and Germany, and this causes the defendants to be concerned about the prospect of double recovery.  Although Lufthansa “accepts that it is not entitled to double recovery in France or Germany where an award of the same profits has already been made in these proceedings in respect of the same physical products” (para. 264), the defendants want a recital in the final order to the effect that “the sums . . . found due in the Main Judgment were ‘provisional pending the final resolution of the Account involving the parties in France and Germany’. The purpose of this is to enable the Defendants to ask the English court to reduce the award of profits to Lufthansa in the event that the French or German courts award Lufthansa sums which the Defendants consider involve double recovery” (para. 265).  The trial court, expressing doubt over whether it had jurisdiction to make such an order, concluded that even if it did it would exercise its discretion not to do so here, because (among other things) “this should be a matter for [the French or German Courts] and not by the English Courts” (para.266).  The Court of Appeal agrees:

It is up to those courts to decide whether, and if so to what extent, Lufthansa’s claims involve double recovery, and if they do involve double recovery, what to do about it. It is not the function of the English courts to mark the homework of the French and German courts once they have undertaken that exercise. That would be a gross breach of comity (para. 268).

As for interest, Astronics and Panasonic argued that the High Court lacks authority “to award pre-judgment interest prior to the date on which the patentee elects for an account of profits . . . either in equity or pursuant to section 35A(1) of the Senior Courts Act 1981” (para. 270).  The court rejects these arguments, and makes the persuasive point that “the time value of money is just as relevant to an account of profits as to an award of damages” (para. 274).  Astronics and Panasonic also contest the judge’s decision to award interest by reference to the U.S. Prime Rate (specifically, Prime + 2%), as opposed to the Euribor rate; but the court rejects this argument as well, stating that  

 

As Lufthansa points out, Astronics’ and Panasonic’s approach involves converting the judge’s awards of profits, which were in US$, into euros using a conversion factor derived by averaging the exchange rate between US$ and euros over the period when each relevant sum of profits was made, then applying a Euribor-based rate of interest to the resulting euro sums and then converting the resulting amounts of interest into US$ using a conversion factor based on the exchange rate at the end of the period over which interest was to be awarded.

 

As Lufthansa submits, this approach is contrary to the principle that it is no part of the court’s function to allow for exchange rate fluctuations between the date as at which monetary awards are assessed and the date of judgment (paras. 307-08).

That concludes Lord Justice Arnold’s opinion, in which Lord Justices Nugee and Lewison concur.  Lord Justice Nugee writes one paragraph stating his “inclination” to interpret Patents Act section 67(1) (discussed in paragraph 259 of Lord Justice Arnold’s opinion) as referring to proceedings brought only by an exclusive licensee, but notes that “it is not necessary to resolve this point for the purposes of these appeal” (para. 312).  Lord Justice Lewison adds a longer concurring opinion focusing on accounts of profits, which takes a somewhat more negative view of the utility of the noninfringing alternative concept in awarding profits.  He writes that "In a simple case there may be no need to investigate a counterfactual non-infringing alternative. Suppose that the patent in suit is a patent for an inventive widget. The infringer makes widgets falling within the claims of the patent and sells them. In such a case, the court need do no more than assess what profit the infringer made from the sale of the widgets and order him to pay that amount to the patentee" (para. 320).  For reasons I’ve been discussing now for many years, I do not find this perspective to be persuasive--though as I noted in my previous post, I agree with the Lufthansa court to the extent that administrative costs often may counsel in favor of applying an apportionment analysis instead of the differential profits approach to calculating the profits attributable to the infringement.  Lord Justice Lewison then provides a short discussion of the Canadian Nova v. Dow decision, in which however he expresses his general agreement with Canadian Supreme Court Justice Rowe’s analysis (paras. 321-27), in particular Justice Rowe’s rejection of the argument that Nova should have been able to deduct the profits it would have made from selling “an entirely different kind of plastic.”  As indicated in my previous post, I concur in Professor Siebrasse’s view that the Canadian Court got this issue wrong.  Lord Justice Lewison’s opinion concludes with a discussion of the Australian Dart Industries case and other English decisions.  Toward the very end he adds this paragraph:

In relation to the apportionment exercise he noted that in some previous cases (Hotel Cipriani and Jack Wills Ltd v House of Fraser (Stores) Ltd [2016] EWHC 626 (Ch)) profits had been apportioned on the basis of a notional royalty, calculated by reference to actual royalties charged in the market. That was also one of the methods canvassed by Leggatt J in Marathon Asset Management Ltd v Seddon in a case where there was no non-infringing alternative. He decided that it was appropriate to use that method of apportionment. In so deciding, the judge accepted the evidence of Mr Bezant, the expert called by the Defendants, to the effect that the use of a royalty was a way of sharing the profit between the contribution made by the patent and the contribution made by other factors to the success of the Defendants’ products.

 

Mr Hall argued that the use of the licence was wrong in principle. A licence is designed to share profit between the right holder and the licensee, whereas the object of an account of profit is to transfer the whole of the profit from the infringer to the right holder. Although that argument was attractively put, it contains an unarticulated premise which, in my view, is wrong. The premise is that the share of profit for which a licence provides is a share of the profit derived from the right. But that is not (or at least not necessarily) so. The pool of profits which must be shared between licensor and licensee may be (and often is) the overall profit of the complex product into which the patented article is incorporated. If so, then the share of the overall profit for which the licence provides may well be the entirety of the overall profit attributable to the patented article (paras. 348-49).     

Lord Justice Lewison is of course correct that “[t]he pool of profits which must be shared between licensor and licensee may be (and often is) the overall profit of the complex product into which the patented article is incorporated”; and I can't disagree that “the share of the overall profit for which the licence provides may . . . be the entirety of the overall profit attributable to the patented article” (emphasis added).  But I nevertheless find Mr. Hall’s analysis more persuasive, as an economic matter:  a licensee with any measure of bargaining power is unlikely to agree to agree to pay 100% of the benefit it expects to derive from the use of the licensor’s patent.  Still and all, if it turns out that the English courts downplay the use of NIAs in calculating infringers’ profits but also rely heavily on notional royalty rates for apportionment, the end result may be tolerable—though one might be forgiven for asking whether the disgorgement remedy really needs to exist at all, if the end result is going to be the functional equivalent of a reasonable royalty.  

Guest Post: Book Review of ‘Inclusive Innovation in the Age of AI and Big Data’

Next week I will publish the third and final installment of my three-part series on  the Court of Appeals for England and Wales’ recent decision on disgorgement of profits, Lufthansa Technik AG v. Astronics Advanced Electronic Systems, [2026] EWCA Civ 964.  Today, however, I am happy to publish a guest post by Dr. Ashish Bharadwaj, the Founding Pro-Vice Chancellor of  WPU GŌA and the author or editor of several books on law and technology.  As you can see, the guest post is a review of a new edited volume by Professors Daryl Lim and Peter Yu.

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Book Review of ‘Inclusive Innovation in the Age of AI and Big Data’

 Edited by Daryl Lim and Peter K. Yu (OUP 2026, 432 pp, ISBN 978-0-19-779941-3)[1]

 Written by Ashish Bharadwaj, India

Innovation policy has long operated on the implicit assumption that economic growth, technological advancement, and human well-being advance in tandem. Yet, as Daryl Lim and Peter K. Yu demonstrate in their ambitious edited collection, Inclusive Innovation in the Age of AI and Big Data, unguided technological expansion frequently entrenches structural exclusion and concentrates capital.

The central idea of this edited volume is to reframe the normative architecture of intellectual property (IP) law around three simple questions. Each is deceptively simple, but demands deep academic thought – innovation by whom, for whom, and to what end? Historically, Western IP paradigms were constructed around formal, individualized, and documentable commercial outputs. This framework systematically marginalized informal, collaborative, or traditional knowledge structures. As artificial intelligence and big data analytics become the primary engines of creative and inventive activity, these historical blind spots do not simply persist—they are automated at scale. Machine learning models trained on historically biased data inevitably reproduce those biases under a guise of technological neutrality. Rather than proceeding through a mechanical chapter-by-chapter summary, this review evaluates how the volume’s fifteen chapters intersect across four thematic axes.

A key strength of the volume is its refusal to rely on anecdotal critiques of IP inequality. Instead, several contributions offer empirical assessments of where and why demographic leaks occur across creative and inventive pipelines. The book begins with Brent Lutes, Michael Palmedo, and Ryan Safner examining United States Copyright Office datasets from 1978 to 2020. Their findings reveal a nuanced picture: while female authorship reached parity in non-dramatic literary works (51.2% by 2020), persistent deficits remain in technical domains such as software (20.4%) and sound recordings (22.0%). Econometric modeling indicates that registration volumes correlate strongly with educational attainment and urban geography, demonstrating how socioeconomic baseline disparities dictate access to formal IP rights.

Focusing on academic patenting in Chapter 4, W. Michael Schuster, Miriam Marcowitz-Bitton, and Deborah R. Gerhardt analyse two decades of data from top U.S. research universities. Female researchers account for only 14% to 19% of named inventors annually. Crucially, the authors uncover structural isolation: over 64% of all-female patent applications involve solo inventors, whereas male inventors disproportionately benefit from collaborative team networks. This network disparity directly deprives female academics of institutional commercialization support and downstream citation impact. Chapters 2 and 3 complicate how scholars measure these disparities. In the former, the authors critique the name-disambiguation and algorithmic gender-attribution tools used in databases like USPTO's PatentsView. These methodologies fail to capture non-binary identities, cultural naming variations, or post-marital surname changes. Evaluating diversity solely through granted patents introduces survival bias: female inventors experience a significantly lower application-to-grant conversion rate (69.44%) than male inventors (73.54%), driven largely by higher rates of application abandonment after initial rejections.

Complementing this, Carlotta Nani, Martin Correa, and Julio Raffo utilize the WIPO Pulse Survey (50 countries) in Chapter 3 to differentiate between objective IP knowledge and self-reported awareness. Their analysis uncovers a confidence gap: women in high-income economies consistently perform well on objective tests regarding design and copyright, yet underreport their own subject-matter confidence compared to male peers. Beyond pipeline metrics, the volume addresses the institutional mechanics that mediate legal protection.

Two chapters are particularly interesting in how they illustrate discretionary human gatekeeping intersecting with algorithmic tools. Jessica C. Lai presents a qualitative critique of patent attorneys as critical actors in defining patentability. Patent attorneys do not merely translate technical disclosures into claims; they construct legal boundaries. Legal constructs such as the Person Having Ordinary Skill in the Art (PHOSITA) have historically been modelled on male, Western archetypes. Consequently, practitioners may implicitly undervalue innovations originating in female-dominated sectors or advise female inventors to accept narrower claim scopes. Lai warns that integrating generative AI tools into claim drafting threatens to institutionalize these biases by training automation tools on historically skewed patent specifications. This institutional failure is illustrated in the next chapter by Jordana Goodman, Yan Li, Regan Murphy, and Khamal Patterson through their study of the NuDred hair sponge—an invention designed for styling Black hair. The authors trace how communication breakdowns between non-Black examiners and Black inventors resulted in inappropriate rejections based on irrelevant prior art, such as bath sponges and antiperspirant applicators. The examination process failed to comprehend the technical behavior of polyurethane foam when applied to Black hair textures. While Goodman et al. suggest that generative AI could assist practitioners in translating culturally specific technical language, they stress that technical tools cannot replace cultural competency within patent offices.

Moving from diagnosis to prescription, Chapters 7 through 13 evaluate administrative interventions and regulatory frameworks designed to foster equity across various organizational interventions and metrics – Targeted Interventions, Capacity Metrics, and Behavioral Nudges. Margo A. Bagley and Colleen V. Chien examine empirical data from the Innovator Diversity Pilots Initiative, demonstrating how blind invention disclosures, mentorship pipelines, and simplified filing workflows reduce entry barriers for underrepresented inventors. On the other hand, Suzanne Harrison and Bowman Heiden critique traditional metrics that rely on patent counts, arguing that counts reflect past output rather than latent inventive capacity. Drawing on corporate diversity pledge programs, they argue that activating latent inventorship among underrepresented employees expands overall organizational productivity.

Paola Cecchi-Dimeglio presents randomized corporate experiments showing that behavioral nudges—such as simplified submission portals, storytelling videos, and inclusive language—increase both the volume and quality of patent disclosures from female employees. In Chapter 10, Deja Workman and Christopher L. Dancy offer a critique of the AI engineering lifecycle. Drawing on Sylvia Wynter’s concept of the "biocentric Man," they illustrate how standard AI development workflows privilege Western paradigms while reproducing techno-colonialism. They argue that true inclusivity requires community-cantered design and, where necessary, the refusal to deploy harmful AI architectures. Statistician David R. Hunter provides a methodological baseline in Chapter 11. Revisiting classic cases such as Gratz v. Bollinger and blind orchestral auditions, Hunter warns against the "streetlight effect"—the tendency to measure what is easy to quantify rather than what is substantively meaningful. He urges caution when using statistical models as definitive proof of structural discrimination. Addressing legal reform, Daryl Lim formulates "equitable progress" as a guiding norm for AI regulation. Synthesizing Rawlsian distributive justice and Amartya Sen’s capability approach, Lim argues that regulatory oversight across the U.S., EU, China, and Singapore must balance commercial incentives against social equity and worker displacement. W. Keith Robinson translates these governance principles into administrative procedures. He proposes a Responsibility, Transparency, and Accountability (RTA) framework for the USPTO, advocating for mandatory algorithmic impact assessments, enhanced disclosure of AI training datasets, and post-grant audit mechanisms for AI-assisted patents.

The final section widens the analysis to international political economy, examining how global technology shifts risk and exacerbates North-South inequalities. Lee Jyh-An and Liu Jingwen analyze the U.S.-China AI rivalry. They contrast China’s state-directed model—characterized by centralized data aggregation, state subsidies, and flexible copyright standards for AI outputs—with the U.S. market-driven approach centered on venture capital, proprietary models, and export controls on advanced semiconductor hardware. This geopolitical competition fragments international standards, reducing complex equity questions to instrumentalities of national security. Closing the volume, Peter K. Yu addresses the widening digital divide separating the Global North from the Global South. Mainstream policy discourse often ignores the infrastructural realities of developing nations, such as deficits in compute capacity, energy infrastructure, local-language datasets, and technical capital.

To prevent digital neo-colonialism, Yu outlines a range of concrete mechanisms worth mentioning. These are (a) Expanded IP flexibilities and statutory fair-use exceptions for model training; (b) Mandatory technology transfer frameworks under international law; (c) An international Global Fund for AI infrastructure; (d) Shared, multi-national computational resource pools; (e) Open-source foundational models tailored for public development; and (f) Institutional support for localized and indigenous innovation ecosystems.

Inclusive Innovation in the Age of AI and Big Data provides a comprehensive, multi-methodological examination of how legal institutions regulate emerging technologies. By pairing rigorous empirical data with theoretical critiques, Lim and Yu have compiled a volume that advances legal scholarship and innovation policy. The volume implicitly highlights an underlying tension between its contributions, namely between the incremental administrative reform and the structural critique.

Authors such as Bagley, Chien, Harrison, Heiden, and Cecchi-Dimeglio propose actionable internal adjustments within existing institutional frameworks (e.g., patent office procedures, corporate diversity metrics, behavioral nudges). For structural critique, contributions such as Workman and Dancy’s deconstruction of the "biocentric Man" suggest that existing legal and market structures are fundamentally configured to perpetuate historical power dynamics. This tension raises an important question for ongoing scholarly inquiry: Can incremental procedural adjustments meaningfully address structural inequities, or do they risk legitimizing systems that are inherently exclusionary? Similarly, while Yu’s policy framework in Chapter 15 offers a clear blueprint for bridging the global AI divide, its implementation faces significant political-economy hurdles. In a geopolitical environment marked by rising techno-nationalism, export controls, and aggressive enforcement of proprietary IP by multinational corporations, securing global consensus for mandatory technology transfers or a Global Fund for AI will be challenging. Future research must examine how developing nations can utilize regional trade agreements, data sovereignty frameworks, and South-South initiatives to build technological capacity independently of Global North concessions.

These conceptual tensions do not diminish the contribution of the collection; rather, they demonstrate its capacity to frame the research agenda for technology policy and IP scholarship. Lim and Yu have produced a foundational text that demonstrates technological neutrality is a myth and unguided market dynamics risk entrenching structural inequalities. Inclusive Innovation in the Age of AI and Big Data provides scholars, practitioners, and policymakers with empirical grounding and analytical tools to design innovation systems centered on equity, transparency, and broad-based human capability. It is an essential reference for legal scholars, economists, and technology policymakers addressing the societal impacts of AI governance.

References

 

1.    Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026).

2.    ibid xx1–xxiii; see also Robyn Klingler-Vidra, Alex Glennie and Courtney Savie Lawrence, Inclusive Innovation (Routledge 2022) 1.

3.    Colleen V Chien, 'The Inequalities of Innovation' (2022) 72 Emory Law Journal 1.

4.    Peter K Yu, 'Intellectual Property, Global Inequality, and Subnational Policy Variations' in Daniel Benoliel, Peter K Yu, Francis Gurry and Keun Lee (eds), Intellectual Property, Innovation and Economic Inequality (Cambridge University Press 2024) 81.

5.    UN General Assembly, 'Transforming Our World: The 2030 Agenda for Sustainable Development' (25 September 2015) UN Doc A/RES/70/1 (SDG 10); Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) art 27.

6.    Daryl Lim, 'AI, Equity, and the IP Gap' (2022) 75 SMU Law Review 815, 843–44; Peter K Yu, 'Cultural Relics, IP and Intangible Heritage' (2008) 81 Temple Law Review 433.

7.    Lim (n 6) 831–32.

8.    Brent Lutes, Michael Palmedo and Ryan Safner, 'The State of Inclusivity in Copyright and Creative Ecosystems' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 3; see also Robert Brauneis and Dotan Oliar, 'An Empirical Study of the Race, Ethnicity, Gender, and Age of Copyright Registrants' (2018) 86 George Washington Law Review 46.

9.    US Copyright Office, Women in the Copyright System: An Analysis of Women Authors in Copyright Registrations from 1978 to 2020 (Office of the Chief Economist 2022); US Copyright Office, The Resilience of Creativity: An Examination of the COVID-19 Impact on Copyright-Reliant Industries and Their Subsequent Recovery (2024).

10.  Michelle Saksena and Gauri Subramani, 'Understanding Demographics in Patent Data' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 27.

11.  Abhay Aneja, Oren Reshef and Gauri Subramani, 'Attrition and the Gender Patenting Gap' (2025) 107 Review of Economics and Statistics (forthcoming); US Patent and Trademark Office, Progress and Potential: 2020 Update on U.S. Women Inventor-Patentees (Office of the Chief Economist 2020).

12.  Carlotta Nani, Martin Correa and Julio Raffo, 'Gender Differences in Intellectual Property Awareness: Evidence from a Global Survey' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 45.

13.  Elodie Carpentier and Julio Raffo, The Global Gender Gap in Innovation and Creativity: An International Comparison of the Gender Gap in Global Patenting over Two Decades (World Intellectual Property Organization 2023).

14.  W Michael Schuster, Miriam Marcowitz-Bitton and Deborah R Gerhardt, 'The Gender Gap in Academic Patenting' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 73; see also W Michael Schuster, Miriam Marcowitz-Bitton and Deborah R Gerhardt, 'The Gender Gap in Academic Patenting' (2022) 56 UC Davis Law Review 759.

15.  Waverly W Ding, Fiona Murray and Toby E Stuart, 'Gender Differences in Patenting in the Academic Life Sciences' (2006) 313 Science 665.

16.  Jessica C Lai, 'Patent Attorneys and the Increasing Use of Artificial Intelligence: A "Thought Experiment" on Our Human and Technological Gatekeepers' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 97.

17.  Jessica C Lai, Patent Law and Women: Tackling Gender Bias in Knowledge Governance (Routledge 2022); Dan L Burk, 'Do Patents Have Gender?' (2011) 19 American University Journal of Gender, Social Policy & the Law 881.

18.  Jordana Goodman, Yan Li, Regan Murphy and Khamal Patterson, 'Inventing Fairness: Exploring AI's Role in Patent Reform' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 115.

19.  Jordana R Goodman and Khamal Patterson, 'Access to Justice for Black Inventors' (2024) 77 Vanderbilt Law Review 109; Anjali Vats, The Color of Creatorship: Intellectual Property, Race, and the Making of Americans (Stanford University Press 2020).

20.  Margo A Bagley and Colleen V Chien, 'Inclusive Innovation in an Age of AI: Insights from the Innovator Diversity Pilots Initiative' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 139.

21.  Suzanne Harrison and Bowman Heiden, 'Improving Diversity and Inclusivity Measurements in Inventorship: A Competitiveness Perspective' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 171.

22.  Paola Cecchi-Dimeglio, 'Bridging the Gender Gap in Innovation: A Behavioral Approach to Inclusivity' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 185.

23.  Deja Workman and Christopher L Dancy, 'Identifying Potential Inlets of the Biocentric Man in the Artificial Intelligence Development Process' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 211.

24.  Sylvia Wynter, 'Unsettling the Coloniality of Being/Power/Truth/Freedom: Towards the Human, After Man, Its Overrepresentation--An Argument' (2003) 3(3) CR: The New Centennial Review 257.

25.  David R Hunter, 'Taking Stock: What Statistics Can and Cannot Do' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (OUP 2026) 231.

26.  Gratz v Bollinger 539 US 244 (2003).

27.  Daryl Lim, 'Equitable Progress and the Regulation of AI' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 245.

28.  John Rawls, A Theory of Justice (Harvard University Press 1971); Amartya Sen, Development as Freedom (Oxford University Press 1999).

29.  W Keith Robinson, 'Responsibility, Transparency, and Accountability in AI Patents' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 279.

30.  Lee Jyh-An and Liu Jingwen, 'Navigating Turbulence: The Challenge of Inclusive Innovation in the U.S.-China AI Race' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 301.

31.  Peter K Yu, 'Bridging the Global Artificial Intelligence Divide' in Daryl Lim and Peter K Yu (eds), Inclusive Innovation in the Age of AI and Big Data (Oxford University Press 2026) 331.

32.  UNCTAD, Technology and Innovation Report 2025: Inclusive Artificial Intelligence for Development (United Nations 2025) 79; UN Secretary-General's High-Level Advisory Body on AI, Governing AI for Humanity: Final Report (United Nations 2024).

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[1] Ashish Bharadwaj writes on technology innovation and patents. His writings can be accessed on www.ashishbharadwaj.in and he can be contacted on ab.ashish@gmail.com

 

Wrongful Patent Assertion: Free First Chapter and Discount Code

My book Wrongful Patent Assertion:  A Comparative Law and Economics Analysis (Oxford Univ. Press 2026) is now available for purchase online and in hard copies in all major markets.  Readers can download the first chapter for free using this link, through the end of this month.  In addition, you can use the promotion code listed in the picture below (AUFLY30) for a 30% discount. 

From the book description:

Patents play an important role in inducing the investment needed to transform basic discoveries into the practical innovations that contribute to long-term economic growth. But patents also can generate a variety of social costs which, if unchecked, can unnecessarily impede competition, inhibit innovation, impair the integrity of the marketplace, and reduce overall social welfare.

 

Wrongful Patent Assertion provides the first comprehensive, comparative overview of how the world's leading jurisdictions for patent litigation employ different bodies of law and legal doctrines-including antitrust and unfair competition law, as well as other generally-applicable legal principles-to regulate the enforcement of patent rights, and how these efforts might be improved. Among the topics discussed are the circumstances under which owners are or should be liable for the actual or threatened enforcement of patent rights; what sort of harms should matter in assessing liability; and the circumstances under which liability should depend, in whole or in part, upon the patent having been adjudicated invalid or not infringed ex post, or upon evidence that the assertion of rights enables the owner to extract benefits beyond the patent's probable ex ante scope; or alternatively, upon some reason independent of the patent's actual or probable validity or infringement.