Document Type
Article
Publication Date
2017
ISSN
0734-4015
Publisher
University of Texas School of Law
Language
en-US
Abstract
This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society's welfare. Patent damages should therefore balance society's interest in encouraging innovation against the need to regulate infringement incentives. This balancing approach generates an optimal standard for awarding enhanced damages and guidelines for determining the size of the damages multiplier. On the legal standard, the approach developed here illuminates the factors that should be taken into consideration in the enhancement analysis, and, more importantly, the reasons those factors should be considered. On the precise size of the multiplier, this approach suggests principles that both justify and constrain the multiplier: (1) the elimination of gains from willful infringement, (2) the multiplication of damages for covert infringement, and (3) the social interest in enhancing damages where the ratio of the social to the private benefit from the patent is high.
Although the analysis here is mostly normative and draws heavily on the economic theory of penalties, 9 the aim of this paper is to provide a set of practical guidelines courts can follow in explaining, justifying, and developing rules to structure the discretion that Halo has returned to them. Halo provides an opportunity for courts to integrate deterrence policy more closely with the rules governing the enhancement of damages for patent infringement.
Recommended Citation
Keith N. Hylton,
Enhanced Damages for Patent Infringement: A Normative Approach
,
in
36
Review of Litigation
417
(2017).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/810
Working paper available on SSRN
Comments
Updated with published version of paper on 9/25/22
Working paper available on SSRN