Ex-Post Liability Rules in Modern Patent Law

By Rosa Castro Bernieri

This book examines alternative ways of protecting patent rights using the law and economics framework of property and liability rules. Traditional compulsory licenses are compared with the most recent discussions on the choice between granting or denying injunctive relief for patents (ex post liability rules). The debate about strategic behavior triggered by the patent system, especially in the aftermath of the US Supreme Court decision in eBay v. MercExchange is discussed, along with policy perspectives on both sides of the Atlantic. The problem of calculating the level of compensation, which is one of the most important critiques against the use of liability rules in patent law, is also examined in depth. The book concludes by suggesting that a coherent patent system could opt for property rules in general cases, while leaving enough space for exceptions and limited liability rules. Curtailing exceptions and limitations to patent rights, including the use of patent liability rules, could otherwise risk stifling innovation and even contradicting the goals of patent law.

351 pages

Publication Date: 10/7/2010
Format: Paper
ISBN: 9789400001053