Chapter 6: Flexible Application of Injunctive Relief in Intellectual Property Enforcement (with Reference to Lessons from the Emerging US Jurisprudence)
Joshua D. Sarnoff1 INTRODUCTION Although the existence of a right normally implies the existence of a remedy for its violation, substantial judicial discretion may exist in determining what particular remedy to apply. Such discretion provides flexibility to accomplish policy goals, and thus may be considered one of many important ‘policy levers’ that may be applied to accomplish legislative purposes and enhance social welfare, without creating excessive specificity or differentiation in the legislation itself.2 Retail differentiation of remedies by judges in particular cases may be less risky for innovation policies, less costly to administer, more sensitive to contextual information or more politically feasible than wholesale differentiation of rights and remedies at the legislative level.3 Such legislative specificity, moreover, would encourage rent-seeking. Few (except perhaps lawyers) would want intellectual property legislation to look like the tax code or environmental regulations. In both common law and civil law jurisdictions, some form of equity jurisprudence invariably exists as an alternative to or correction to a more rigid, codified, and universal system of enforcing legal rules, whether or not this alternative system of justice is applied by separate municipal courts.4 Nevertheless, separate courts of equity have a long pedigree, tracing back at least to Roman law.5 The basic nature of equity jurisprudence is for courts to have ‘jurisdiction in 98 Flexible application of injunctive relief 99 cases of rights, recognized and protected by the municipal jurisprudence, where a plain, adequate, [or] complete remedy cannot be had in the courts of common law’.6 Equitable jurisdiction and...
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