Patent Damages Without Borders

In addition to considering Prof. Holbrook’s work, folks digging deeper into the WesternGeco issues will also want to consider Prof. Kumar’s updated article titled Patent Damages Without Borders.  She explains:

In WesternGeco, the Federal Circuit held that patent holders who show infringement under § 271(f) of the Patent Act cannot recover foreign lost profits. . . . This interpretation severely limits the ability of district courts to make patent infringement victims whole. . . . By creating this bright-line rule, the Federal Circuit has unduly restricted the ability of patent holders to recover damages, including in cases where there is no other applicable law. This Article proposes that the Federal Circuit adopt a flexible test that balances prescriptive comity concerns with the United State’s interest in making victims of domestic patent infringement whole.

One thought on “Patent Damages Without Borders

  1. 1

    Prior to reading the article, I have to winder if the purported lack of ability to make a domestic entity “whole” might directly lead to (back) to the consideration that injunctions are the single (and best) means of making the transgressed whole…

    Equity applied without the consideration of that the right itself means (and with TOO much emphasis on a “traditional” view that “injunctions are harsh”) should be reevaluated.

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