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A basic economic case for reordering the patent market with gain-based legal remedies

Abdussalam, M and Nicol, D ORCID: 0000-0002-6553-2839 2017 , 'A basic economic case for reordering the patent market with gain-based legal remedies' , Intellectual Property Quarterly , pp. 1-28 .

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Abstract

This article addresses the incomplete picture of patent opportunism as presented by proponents for the default application of an administrative model of legal remedies (i.e. liability rules/monetary remedies) to the enforcement of patents. It is argued in this article that the administrative model, as it presently exists in major patent law jurisdictions, is itself conducive to patent opportunism. This is because the prevailing design of the administrative model, built on libertarian philosophy or fashion, deviates from patent law’s utilitarian foundation and as such inherently enables opportunism by reason of this gap. To correct this ideological gap between the administrative model of remedies and patent law policy, this article proposes the exclusive application of gain-based remedies to the enforcement of patents.

Item Type: Article
Authors/Creators:Abdussalam, M and Nicol, D
Keywords: Australia, Canada, Comparative law, Economics and law, Infringement, Jurisprudence, Patents, Remedies
Journal or Publication Title: Intellectual Property Quarterly
Publisher: Sweet and Maxwell Inc
ISSN: 1364-906X
Copyright Information:

Copyright 2017 Sweet & Maxwell and its Contributors

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