Tuesday, September 3, 2019

New Papers on IP Remedies

1.  Jane Cornwell has published an article titled Injunctions and Monetary Remedies Compared:  The English Judicial Response to the IP Enforcement Directive, 40 EIPR 490 (2018).  (Sorry I was a bit late in discovering this one!)  Here is the abstract:
This article reviews and compares English case law developments on injunctions (including intermediary injunctions) and monetary remedies under the IP Enforcement Directive. Highlighting the divergent judicial response to the IPED across these different remedies, it argues that the cases on monetary remedies suggest particular concern about the disruptive impact of this aspect of the IPED on the wider private law.
2.  Andrew C. Michaels has posted a paper on ssrn titled Implicit Overruling And Foreign Lost Profits, 25 B.U. J. Sci. & Tech. L. 101 (2019).  Here is a link to the paper, and here is the abstract:
How does one know when the Supreme Court has implicitly overruled a circuit panel precedent? Despite the fact that circuit courts are faced with this question on a regular basis, the answer is not clear. The Power Integrations case currently pending before the Federal Circuit provides an interesting case study in implicit overruling, as well as an opportunity for the court to clarify how extraterritoriality relates to proximate causation in the law of patent damages, in light of the Supreme Court's recent opinion in WesternGeco.
3.  Saul Levmore has posted a paper on ssrn titled Piece Problems: Component Valuation in Marketing and in Patent and Tort LawHere is a link, and here is the abstract:
The problems referred to in the title of this chapter concern evaluating a given variable when it is one of several that have combined to bring about a result. In some cases, there is an easy market solution. Imagine that you contract to buy a house and then the beautiful kitchen stove, one of many things that attracted you to the property, is destroyed before you close the transaction or occupy the property. How much should the price now be reduced? Here there is an upper limit based on the cost of a comparable replacement appliance. A more precise valuation would also be easy if identical houses, lacking this one feature, had recently been sold. The stove is just a piece of the larger transaction, and with these convenient facts, there is not much of a “component valuation problem.” Additionally, the stove is unlikely to have been of greater value because of its interaction with other items in the house; colors and sizes are fairly standardized. “Conjoint analysis” – a term that usually refers to survey evidence that tries to elicit the value of a component – is therefore unnecessary, or at least uncomplicated, because value does not depend on an interaction among variables in a way that is not directly observed. It is also interesting because it does not present a difficult Game Theory problem, or result that might be described in common parlance as something that depends on the relative bargaining skill of the parties.
4.  Norman Siebrasse recently published a post on Sufficient Description on an interlocutory appeal T-Rex Property AB v Pattison Outdoor Advertising Limited Partnership 2019 FC 1004, in which the Federal Court states (without deciding) that "the question of whether a non-practicing entity is entitled to elect between damages or profits appears to be a novel legal issue which adds to the proceeding’s complexity" (para. 27).  Professor Siebrasse notes some open questions surrounding the remedy of accounting of defendant's profits under Canadian law, and makes some observations about PAE litigation in Canada. 

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