This essay responds to Professor’s Ted Sichelman’s forthcoming article, Purging Patent Law of “Private Law” Remedies, 91 Tex. L. Rev. __ (2013), which argues that courts should abandon the conventional view of patents as private rights for which private-law remedies are appropriate, and instead should award damages and injunctions only when, and to the extent that, doing so serves the public interest for which patents are granted in the first place. Although some of Sichelman’s specific recommendations are well within the mainstream of contemporary patent scholarship, in particular some of his recommendations relating to permanent injunctions and enhanced damages, he also argues that courts should award monetary relief for patent infringement so as to align ex ante incentives with ex post rewards; this could mean awarding either more or less than would be necessary to restore the patentee to the position it would have occupied but for the infringement (the traditional benchmark for compensatory damages). Although I remain skeptical that such a system could ever work in the real world, Sichelman defends his thesis with aplomb – and recognizes its practical infeasibility in the near term. In addition, his analysis suggests that at least in industries in which patents are unlikely to play a major role in inducing invention, disclosure, or commercialization, efforts to ensure that defendants restore patentees to the position they would have occupied, but for the infringement, may not be worth the candle; some risk of undercompensation may be more tolerable than is commonly assumed. I will suggest that this implication, if valid, possibly could have some practical payoff even in the short run.
Cotter, Thomas F., Make No Little Plans: Response to Ted Sichelman, Purging Patent Law of ‘Private Law’ Remedies (July 26, 2013). Texas Law Review, Vol. 92, 2013 (Forthcoming); Minnesota Legal Studies Research Paper No. 13-25.