This paper rejects the fundamental “private law” premise of patent law remedies that courts should always attempt to restore the status quo ante by making the patentee “whole” in the event of infringement. Instead, the patent system and its associated remedies should be viewed as part of a public regulatory regime designed to further the societal goal of optimizing innovation incentives. Such an approach mandates significant changes in the structure of patent remedies. For example, I argue that injunctions and make-whole damages should often be denied to owners – practicing and non-practicing alike – of patents on components of complex products. In contrast, courts should generally award more than make-whole damages in cases involving difficult-to-detect infringement.
Sichelman, Ted M., Purging Patent Law of ‘Private Law’ Remedies (September, 23 2011). San Diego Legal Studies Paper.