Comparative Patent Remedies

A Legal and Economic Analysis

Prof. Thomas F. Cotter

Provides an in-depth analysis of the law of patent remedies (including damages, injunctions, and declaratory judgments) as found in the world's leading patent systems, with an extensive bibliography
Comprehensive coverage of all major patent systems, including the U.S., the E.U., Japan, Canada, Australia, China, Taiwan, South Korea, and India
Assembles information from a wide variety of sources in English, German, and French, many of which are not readily accessible outside the source country
Applies analytical methods of the law-and-economics approach to evaluate the strengths and weaknesses of different practices relating to injunctions, damages, and other patent remedies
Provides available up-to-date estimates and statistics on matters concerning patent grants, applications, number of lawsuits, win rates, invalidation rates, and more, along with sources.

Comparative Patent Remedies

A Legal and Economic Analysis

Prof. Thomas F. Cotter

Description

Nations throughout the world receive more patent applications, grant more patents, and entertain more patent infringement lawsuits than ever before. To understand the contemporary patent system, it is crucial to become familiar with how courts and other actors in different countries enable patent owners to enforce their rights. This is increasingly important, not only for firms that seek to market their products worldwide and for the lawyers who provide them with counsel, but also for scholars and policymakers working to develop better policies for promoting the innovation that drives long-term economic growth.

Comparative Patent Remedies provides a critical and comparative analysis of patent enforcement in the United States and other major patent systems, including the European Union, Japan, Canada, Australia, China, South Korea, Taiwan, and India. Thomas Cotter shows how different countries respond to similar issues, and suggests how economic analysis can assist in adapting current practice to the needs of the modern world. Among the topics addressed are: how courts in various nations award monetary compensation for patent infringement, including lost profits, infringer's profits, and reasonable royalties; the conditions under which patent owners may obtain preliminary and permanent injunctions, including cross-border injunctions in the European Union; the availability of various options for potential defendants to challenge patent validity; and other matters, such as the availability of criminal enforcement and border measures to exclude infringing goods.

Comparative Patent Remedies

A Legal and Economic Analysis

Prof. Thomas F. Cotter

Preface

Chapter 1: Introduction
What Patents Are
International Obligations
Benefits and Costs of Patent Systems
On Comparative Law and Economics, and the Plan of this Book
Identifying Differences and Similarities
Positing possible reasons for the differences
Positive analysis
Normative analysis

Chapter 2: A Framework for Patent Remedies
The Impact of Infringement
Some General Implications
Implications: Injunctive Relief
Implications: Damages
Conclusion

Chapter 3: Patent Remedies in the United States
Overview: The U.S. Patent and Judicial Systems
Patent Remedies: Historical Development
Injunctions
Damages
Damages: Lost Profits
Damages: Reasonable Royalties
Enhanced Damages
Attorneys' Fees, Costs, and Interest
Awards of Infringer's Profits in Design Patent Cases
Declaratory Judgments
Conclusion

Chapter 4: Patent Remedies in the United Kingdom, Canada, and Australia
Introduction
Overview
Patent Remedies: An Overview
Injunctions
Damages
Lost Profits
Reasonable Royalties
Accounting of Defendant's Profits
Enhanced Damages, Attorneys' Fees, Interest
Declaratory judgments, oppositions, and invalidation proceedings
Summary

Chapter 5: Patent Remedies in Continental Europe
Introduction
Overview
Remedies
Preliminary and Permanent Injunctions
Cross-Border Injunctions and Torpedo Actions
Damages: General Considerations
Damages: Lost Profits
Damages: Reasonable Royalties
Defendant's Profits
Enhanced Damages, Attorneys' Fees, Interest
Oppositions, Invalidation Proceedings, and Declaratory Judgments
Conclusion

Chapter 6: Patent Remedies in Japan
Introduction
Overview
Patent Remedies: An Overview
Preliminary Injunctions, Permanent Injunctions, and Border Measures
Damages: Overview
Lost Profits
Reasonable Royalties
Defendant's Profits
Enhanced Damages, Attorney's Fees, Interest
Invalidation Actions and Declaratory Judgments
Summary

Chapter 7: Patent Remedies in China and Selected Other Patent Systems
Introduction
China: Overview
China: Remedies
China: Injunctions
China: Damages
China: Invalidity Proceedings
South Korea and Taiwan
India
Summary

Chapter 8: Conclusion

Table of Cases

Index

Comparative Patent Remedies

A Legal and Economic Analysis

Prof. Thomas F. Cotter

Author Information

Thomas F. Cotter is the Briggs and Morgan Professor of Law at the University of Minnesota Law School, which he joined in 2006. A graduate of the University of Wisconsin Law School, he clerked for the Honorable Lawrence W. Pierce, United States Court of Appeals for the Second Circuit, from 1987-88. He practiced law at Cravath, Swaine & Moore in New York City from 1988-90, and at Jenner & Block in Chicago from 1990-94. From 1994-2005, he taught at the University of Florida College of Law, where he held a University of Florida Research Foundation Professorship and directed the school's Intellectual Property Law Program. From 2005-06, he was a Professor of Law at Washington and Lee University School of Law. He is the co-author, with Roger Blair, of Intellectual Property: Economic and Legal Dimensions of Rights and Remedies (2005).

Comparative Patent Remedies

A Legal and Economic Analysis

Prof. Thomas F. Cotter

Reviews and Awards

"Thomas Cotter in Comparative Patent Remedies has undertaken the formidable, daunting task of describing and comparing the remedies provided in cases of patent infringement for all major patent jurisdictions. Legislative provisions, doctrinal concepts, leading cases, and academic writings from the U.S., the U.K., Canada, Australia, Germany, France, Japan, and China are analyzed in a format that starts with a brief introduction of the patent system and continues with enforcement structures and remedies of injunctive relief and damages. The chapter on Europe also features a discussion of cross-border litigation. With clear writing, an impressive amount of information, and thorough analysis, Cotter's work is a delightful, stimulating read that will be of great interest to patent judges, litigators, and academics alike." --Christopher Heath, Boards of Appeal, European Patent Office and former member of the Max Planck Institute, Munich

"Thomas Cotter is the sole author of this book, and although patent, copyright, and trademark laws are complex and oftentimes baffling, he has for the most organized his material in a simple, straightforward way: on the basis of geographic origin of the laws. This book is useful for academics, judges, lawyers, litigators, and anyone in the general public who is interested in this tough subject. It has been written in clear language and it provides a lot of supporting information for the points he makes." -Paiso Jamakar, BizIndia