Intellectual Property in the WTO Volume II
Edited by Carlos M. Correa
Chapter 3: Lessons from the United States in Regard to the Recent, More Flexible Application of Injunctive Relief
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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