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Unpublished Paper
ExpressO (2012)
  • Karen E. Sandrik
The strength of our patent system is waning. The Supreme Court recently opened the door for dramatic change by rejecting the long-standing presumption that a permanent injunction should issue upon the adjudication of a valid and infringed patent. Courts have since refashioned patent remedies to favor monetary liability for patent infringement, resulting in the restructuring of substantive rights for certain classes of patent holders. This shift to a liability rule means that a patent holder loses its right to require consent prior to the use of its patented technology. This is a troubling development. If a patent holder is unable to enforce its right to exclude, there is little preventing an interested user from acting unilaterally and avoiding the risk of a negative answer. Simply, the interested user will take what it wants without the patent holder’s consent and pay market damages later. In this Article, I argue that patent law should look to the law of trespass to regain the strength of its property roots and the right to exclude, and also to gain a predictable framework for the occasions that merit a switch from a property rule to a liability rule. Under my proposed infringement-as-trespass framework, the vast majority of patent holders will reestablish their near absolute right to exclude. In the event that a patent holder abuses its monopolistic leverage granted to it by the Patent Act to unreasonably and significantly cause public harm, an incomplete privilege will extend to the infringer. This incomplete privilege will function the same way a defense of necessity does in trespass, allowing the infringer access to the patented technology without the ordinary threat of a penalty. Permitting the infringer a limited amount of time to design around the patented technology will further innovation, as well refocus courts on how the public is affected by the gain or loss of the patented technology. This recognition of the public’s interest while still valuing a patent holder’s right to exclude will reinvigorate the current patent system.
  • patent,
  • remedies
Publication Date
February 24, 2012
Citation Information
Karen E. Sandrik. "REFRAMING PATENT REMEDIES" ExpressO (2012)
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