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

Citation

Abdussalam, M and Nicol, D, A basic economic case for reordering the patent market with gain-based legal remedies, Intellectual Property Quarterly pp. 1-28. ISSN 1364-906X (2017) [Refereed Article]

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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 Details

Item Type:Refereed Article
Keywords:Australia; Canada; Comparative law; Economics and law; Infringement; Jurisprudence; Patents; Remedies;
Research Division:Law and Legal Studies
Research Group:Law
Research Field:Intellectual Property Law
Objective Division:Law, Politics and Community Services
Objective Group:Justice and the Law
Objective Field:Justice and the Law not elsewhere classified
Author:Abdussalam, M (Mr Moshood Abdussalam)
Author:Nicol, D (Professor Dianne Nicol)
ID Code:115099
Year Published:2017
Deposited By:Law
Deposited On:2017-03-07
Last Modified:2017-09-05
Downloads:1 View Download Statistics

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