We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
ENDING UNREASONABLE ROYALTIES: WHY NOMINAL DAMAGES ARE ADEQUATE TO COMPENSATE PATENT ASSERTION ENTITIES FOR INFRINGEMENT.
- Authors
Brean, Daniel Harris
- Abstract
According to § 284 of the Patent Act, damages for patent infringement are supposed to be compensatory. The statute only allows for recovery of "damages adequate to compensate for the infringement." Even though it qualifies that such damages must be "in no event less than a reasonable royalty," this language cannot be read to avoid the fundamental requirement that, as compensatory damages, any recovery must stem from actual harm suffered by the patent owner. Absent proof of actual harm, only nominal damages should be recoverable. Yet patentees who suffer no actual harm are regularly obtaining considerable amounts of money from alleged infringers as purported reasonable royalty damages. This state of affairs reveals a need to correct the course that damages law has taken. The most prominent group of patent owners receiving windfalls instead of compensatory damages are patent assertion entities ("PAEs"), also known as "patent trolls." While there are other situations where patentees are not actually harmed by instances of infringement, PAEs' business models and damages theories best highlight how existing damages law is being misread and exploited to support widespread overcompensation for infringement.
- Subjects
UNITED States; ROYALTIES (Patents); PATENT infringement; COMPENSATORY damages; PATENT law; STATE statutes (United States); NONPRACTICING entities (Patent law); DAMAGES (Law); COMPENSATION (Law); ACTIONS &; defenses (Law); U.S. states
- Publication
Vermont Law Review, 2015, Vol 39, Issue 4, p867
- ISSN
0145-2908
- Publication type
Article