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Full-Text Articles in Law
Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold
Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold
Indiana Law Journal
Accidental infringement of patent rights is a pervasive and growing problem in the Information Age. As IP rights proliferate and expand in scope, it is becoming increasingly easy for companies and individuals to inadvertently infringe patents. When such accidental infringement occurs, patent law holds the infringer strictly liable. This contrasts with many areas of tort law where defendants are only liable if they act negligently.
This Article questions the normative desirability of strict liability in patent law. Assuming the primary value of patent law is utilitarian, this Article poses the research question: what liability rule will maximize social welfare? This …
House Judiciary Inquiry Into Competition In Digital Markets: Statement, Herbert J. Hovenkamp
House Judiciary Inquiry Into Competition In Digital Markets: Statement, Herbert J. Hovenkamp
All Faculty Scholarship
This is a response to a query from the Judiciary Committee of the U.S. House of Representatives, requesting my views about the adequacy of existing antitrust policy in digital markets.
The statutory text of the United States antitrust laws is very broad, condemning all anticompetitive restraints on trade, monopolization, and mergers and interbrand contractual exclusion whose effect “may be substantially to lessen competition or tend to create a monopoly.” Federal judicial interpretation is much narrower, however, for several reasons. One is the residue of a reaction against excessive antitrust enforcement in the 1970s and earlier. However, since that time antitrust …
Justice Department's New Position On Patents, Standard Setting, And Injunctions, Herbert J. Hovenkamp
Justice Department's New Position On Patents, Standard Setting, And Injunctions, Herbert J. Hovenkamp
All Faculty Scholarship
A deep split in American innovation policy has arisen between new economy and old economy innovation. In a recent policy statement, the Antitrust Division of the Justice Department takes a position that tilts more toward the old economy. Its December, 2019, policy statement on remedies for Standard Essential Patents issued jointly with the U.S. Patent and Trademark Office and the National Institute of Standards and Technology reflects this movement.
The policy statement as a whole contains two noteworthy problems: one is a glaring omission, and the other is a mischaracterization of the scope of antitrust liability. Both positions are strongly …