Principles for Patent Remedies

In this Article, Professor Golden examines the debate about what the value of patent remedies generally is or should be.  This public debate has become relatively heated in light of recent Supreme Court jurisprudence that may decrease the availability of injunctions forbidding continued infringement.  Professor Golden concludes that policy making in this area should take guidance from specific principles of adaptation and implementation.

The 2006 decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C. has spawned conflicting answers from lower courts and academic commentators regarding how to decide when injunctions should issue.  At the same time, Capitol Hill entities representing a variety of industry heavyweights have poured millions into lobbying for or against patent reform bills.  Amidst all the resulting commotion, one fact seems clear.  We really have little specific sense of what the value of remedies for patent infringement generally is or should be.  Indeed, with a patentee’s ability to invoke the leverage of an injunction cast into doubt by the eBay case, the hunt for a satisfactory remedial system is likely to be a long one.

How then should we determine patent remedies’ proper nature and scope?  Professor Golden argues that policy making should take guidance from three principles of adaptation and two principles of implementation: (1) nonabsolutism in the formulation and application of legal doctrine; (2) antidiscrimination with respect to business models; (3) learning, an interest in fostering the production of useful information; (4) administrability; and (5) devolution of significant decisional responsibility to private or government actors nearest to the facts of an individual case.  Although these principles do not uniquely determine any single best system of patent remedies, they provide a framework for assessing the relative merits of policy proposals and for suggesting ways in which proposals can be improved.  In particular, the principles have implications for current debates regarding the availability of permanent injunctions, the calculation of reasonable-royalty damages, and the possibility of remedial exemptions for prior users or independent creators.