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- Title
THE END OF EXCLUSIVITY: TOWARDS A COMPENSATORY (PATENT) COMMONS.
- Authors
BASHEER, SHAMNAD
- Abstract
In a seminal piece penned over four decades ago, Calabresi and Melamed theorised a legal remedies framework that contrasted "property rules" with "liability" rules. Given the various woes associated with patent exclusivities, I draw on this influential "remedies" framework to suggest that we are on the cusp of a paradigm shift, where property rules are yielding to liability rules in a significant way. A number of factors are contributing to this paradigm shift, including in pertinent part, the onset of judicial "compulsory licenses" and ongoing royalties. I posit that courts in future are more likely to deny injunctions on the ground that patent injury is compensable in monetary terms. A recent decision of the US CAFC (Court of Appeals for the Federal Circuit) in Nichia v. Everlight is testament to this sentiment. I argue that developing countries in particular may find a compensatory liability model attractive, as it helps them retain the space for technological imitation, and blunt the egregious externalities associated with patent exclusivity in terms of healthcare costs and the like. In the ultimate analysis, a more pervasive compensatory liability regime takes us closer to the idea of what I label as a "compensatory (innovation) commons".
- Subjects
UNITED States; PATENT law; COMPULSORY licensing of patents; NICHIA Corp.; ACTIONS &; defenses (Law)
- Publication
IDEA: The Intellectual Property Law Review, 2018, Vol 58, Issue 2, p229
- ISSN
0019-1272
- Publication type
Article