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Intellectual Property Law

University of Florida Levin College of Law

Journal

2017

Articles 1 - 3 of 3

Full-Text Articles in Law

A New Framework For Determining Reasonable Royalties In Patent Litigation, Norman V. Siebrasse, Thomas F. Cotter Jun 2017

A New Framework For Determining Reasonable Royalties In Patent Litigation, Norman V. Siebrasse, Thomas F. Cotter

Florida Law Review

Over the past decade, eight-, nine- and even ten-figure damages awards have become a recurring feature in patent infringement litigation, and yet the principal methods for calculating reasonable royalties (the most common form of damages in patent cases) remain unsatisfying and incoherent. Most frequently, courts employ what we refer to as a “pure ex ante” approach, which aims to construct the hypothetical bargain the parties themselves would have struck prior to infringement (ex ante), based on whatever information would have been available to them at that time. This approach has the advantage of avoiding patent “holdup”— basing the royalty partly …


An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat Jan 2017

An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat

Florida Law Review

This Article challenges the dogma of U.S. patent law that direct infringement is a strict liability tort. Impermissibly practicing a patented invention does create liability even if the infringer did not intend to infringe or know about the patent. The consensus is that this is a form of strict liability. The flaw in the consensus is that it proves too little, for the same is true of intentional torts: intent to commit the tort is unnecessary, and ignorance of the legal right is no excuse. What is relevant is intent to perform the action that the law deems tortious. So …


Removing The Troll From The Thicket: The Case For Enhancing Patent Maintenance Fees In Relation To The Size Of A Patent Owner’S Patent Portfolio, David S. Olson Jan 2017

Removing The Troll From The Thicket: The Case For Enhancing Patent Maintenance Fees In Relation To The Size Of A Patent Owner’S Patent Portfolio, David S. Olson

Florida Law Review

This Article proposes a novel solution to part of the problem that large patent portfolios can cause. Both so-called “patent trolls” and firms that commercialize the patents that they own can accumulate and then abuse large patent portfolios, even if most of the patents in the portfolio are of little value. Instead of suggesting reforms to better determine the value and boundaries of individual patents, as many others have already done, this Article proposes that the U.S. Patent and Trademark Office (PTO) multiply the amount owed to keep a patent in force (patent maintenance fees) based on the size of …