This essay uses ongoing debates about the remedies available for patent infringement to explore some broader questions about normative legal theory. The essay was written for a festschrift for Richard Epstein. Throughout his career, Epstein has systematically defended classical liberal views about property rights, freedom of contract, and private ordering—like the presumption that a patent holder deserves an injunction against ongoing infringement. When that presumption was called into serious question by the Supreme Court’s 2006 decision in eBay v. MercExchange, Epstein defended the traditional presumption on law and economic grounds. We agree with Epstein that injunctions should be a presumptive remedy for patent infringement. But we have learned from Epstein that foundations matter, and we have reservations about the consequentialist and law and economic grounds on which Epstein defends injunctions in patents and property rights more generally. In this essay, we explain why a Lockean theory of rights supplies a more satisfying foundation for property rights and markets than consequentialist and law and economic foundations.2. Prashant Reddy published a post on SpicyIP titled New law to hardcode public interest into injunction jurisprudence. If I understand correctly, the proposed amendment of Indian law would not affect injunctions in all cases, but would make it easier to proceed with infrastructure projects in the face of patent or other lawsuits.
3. Maximilian Haedicke has published an article titled Vorlagepflichten und vertraulicher Informationen im Patentverletzungsprozess ("Disclosure Obligations and Confidential Information in the Patent Infringement Litigation") in the June 2018 issue of Mitteilungen der deutschen Patentanwälten (pp. 249-55). Here is the abstract (my translation from the German):
In recent times the question of protecting confidential information in patent infringement litigation has become increasingly the focus of attention. Wide-ranging legal means for the protection of secret information are not in place. Nonetheless, a balance must be fashioned involving the protection of the parties to the proceedings (especially with regard to their right to be heard), access to justice, as well as the public interest in a transparent case law and legal development. This essay will discuss under what conditions potentially confidential information is introduced in patent litigation, whether it is adequately protected, and what improvements ought be considered.The issues discussed are beginning to become important in FRAND cases in particular, see, e.g., this post from last month.
4. Cuihong Fan, Byoung Heon Jun, and Elmar G. Wolfstetter have published a paper titled Per Unit vs. Ad Valorem Royalty Licensing, 170 Economic Letters 71 (2018). Here is a link, and here is the abstract:
We consider licensing of non-drastic innovations by a patent holder who interacts with a potential licensee in a downstream market. We compare two kinds of license contracts: per unit and ad valorem royalties, combined with fixed fees. Assuming that antitrust authorities apply the same principle to review ad valorem licensing which they apply to per unit licensing, we show that per unit licensing is more profitable if the licensor is more efficient in using the innovation, whereas ad valorem licensing is more profitable if the licensee is more efficient. This explains why and when these licensing schemes should be observed.
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