Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules

Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules

Intellectual Property in the WTO Volume II

Research Handbooks on the WTO series

Edited by Carlos M. Correa

This concise and detailed Handbook addresses some of the most complex issues raised by the implementation of the TRIPS Agreement globally. Among other themes, the Handbook explores the applicability of GATT jurisprudence for the interpretation of the Agreement’s provisions. It also considers key issues relating to the enforcement of intellectual property rights, such as border measures and injunctive relief. Teamed with the first volume – Research Handbook on the Protection of Intellectual Property under WTO Rules – this analysis is supplemented by a thorough review of the most important cases on TRIPS decided under the WTO dispute settlement mechanism.

Chapter 3: Lessons from the United States in Regard to the Recent, More Flexible Application of Injunctive Relief

Joshua D. Sarnoff

Subjects: development studies, development studies, economics and finance, intellectual property, law - academic, intellectual property law, international economic law, trade law


Joshua D. Sarnoff* 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.1 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.2 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 for 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.3 Nevertheless, separate courts of equity have a long * The author thanks Michael Carroll, Peter Jaszi, and David Ryan for helpful insights and Ida Wahlquist-Ortiz for research assistance. 1 See Michael W. Carroll, ‘Patent Injunctions and the Problem of Uniformity Cost’, Mich. Telecomm. & Tech. L. Rev. 13 (2007): 422–26. See generally Dan L. Burk & Mark A. Lemley, ‘Policy Levers in Patent Law,’ Va. L....

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