Research Handbooks in Comparative Law series
Edited by Theodore Eisenberg and Giovanni B. Ramello
Chapter 11: A comparative law and economics analysis of damages for patent infringement
To date, relatively little of the literature within comparative law and economics has addressed the law of intellectual property—that is, the law of patents, copyrights, trademarks, and other rights in intangible creations. Some of my own recent work has begun to occupy this space, with publication of a book chapter and, subsequently, an entire book devoted to the comparative law and economics of remedies for patent infringement. This chapter will highlight one particular topic to which these projects have devoted considerable attention, namely the comparative law and economics of damages—monetary compensation—for patent infringement. As discussed below, patent systems throughout the world have adopted rules and standards to govern the calculation of patent damages that are, at an abstract level, quite similar. At a more concrete level, however, these rules and standards sometimes operate quite differently, both in theory and in practice; moreover, virtually every major system departs in some material way from the standards one might expect to find in a system grounded solely on abstract economic principles. At its best, a comparative law and economics approach to patent damages can help to generate hypotheses to explain these differences, to evaluate the merits of these hypotheses (and of the differing rules and standards themselves), and to suggest areas that merit further investigation.
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