Document Type
Article
Publication Date
Fall 2011
ISSN
0276-9948
Publisher
University of Illinois College of Law
Language
en-US
Abstract
The question of whether damages or an injunction should remedy patent infringement is a highly controversial issue that has been discussed at length in the academic literature. Traditionally, injunctions have been the presumptive remedy for infringement, but this presumption increases holdouts and inefficiency. However, scholars fear that granting damages instead of an injunction will reduce incentives for innovation. In eBay v. MercExchange, the Supreme Court attempted to solve the problem by giving lower courts permission to grant damages instead of an injunction based on equitable principles. However, five years after eBay, lower courts overwhelmingly continue to grant injunctions, in part because they lack a framework under which to decide when damages would be appropriate.
I propose using nuisance law from real property to create a framework where judges balance the harm to the patentee and the utility of the infringer's invention to decide whether to award damages or an injunction. A nuisance model for patent law would fit with the Supreme Court's mandate but would also provide more concrete guidance for lower courts. The article sets out a theoretical model for nuisance in patent law and then describes how the model might be applied in practice by discussing how harm and utility should be defined. Additionally, I show that a nuisance system in patent law is feasible by demonstrating how the life sciences industry has, in some circumstances, used a nuisance-type calculus to inform their decisions about whether to license or seek an injunction on a patent.
Recommended Citation
Janet Freilich,
A Nuisance Model for Patent Law
,
in
2
University of Illinois College of Law
329
(2011).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3956
Included in
Dispute Resolution and Arbitration Commons, Intellectual Property Law Commons, Science and Technology Law Commons
