Show Summary Details
You do not have access to this content

Reining in the rules for ‘lost profits’ damages in patent law

Moshood Abdussalam

Keywords: patents; computation of lost profits; legal remedies

The thesis of this paper is that the prevailing model governing the computation of patent lost profits damages in Commonwealth jurisdictions does not align well with the true nature of the patent system and is therefore apt to derail the social welfare intendments of the system. The article makes this argument based on two principal considerations. The first is that the current model encourages judicial speculation on patentees' compensatory entitlement, thereby creating room for inherent lottery or windfall effects for patentees. The second, which advances the first, is that the prevailing model flies in the face of both the contemporary state of innovation and the social welfare objectives of the patent system. The submission of this paper is that to correct this state of affairs, where patented goods have perfect and imperfect market substitutes, then reasonable royalties alone are sufficient as a monetary remedy. However, where patented goods have ‘zero’ market substitutes (ie where the infringer could not have competed without infringing), only then would it be proper to apply lost profit damages.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information

or login to access all content.