Courts and commentators have recently begun to confront the issue of whether a product configuration that has been disclosed in a utility patent can serve as protectable trade dress under section 43(a) of the Lanham Act. In the view of some, such configurations necessarily enter the public...

Courts and commentators have recently begun to confront the issue of whether a product configuration that has been disclosed in a utility patent can serve as protectable trade dress under section 43(a) of the Lanham Act. In the view of some, such configurations necessarily enter the public...

The conventional wisdom that antitrust is less tolerant of monopoly than is intellectual property (IP) law is sometimes true, but there is another side of the coin that is less frequently commented upon and that deserves further scrutiny. On occasion, IP law condemns conduct on the part of IP...

This chapter from the forthcoming Research Handbook on the Economics of Intellectual Property Law surveys the empirical literature on patent remedies. Part I discusses the literature on injunctions, beginning with an overview of legal doctrine and economic debates over “property rules”...

In this comment to ITC Investigation 337-TA-745 (Certain Wireless Communication Devices, Motorola v. Apple) we, as teachers and scholars of economics, antitrust and intellectual property, remedies, administrative, and international intellectual property law, former Department of Justice lawyers...

Conventional analysis often assumes that there are only two theoretical options for calculating a reasonable royalty in patent disputes: a “pure ex ante” approach, under which a court reconstructs the hypothetical bargain the parties would have struck prior to infringement, based on the...

Courts in many countries continue to follow the traditional practice of awarding the prevailing patent owner a permanent injunction, absent exceptional circumstances. First-generation law-and-economics scholarship, building on Calabresi and Melamed's work on property and liability rules, largely...

This essay responds to Professor's Ted Sichelman's forthcoming article, Purging Patent Law of "Private Law" Remedies, 91 Tex. L. Rev. __ (2013), which argues that courts should abandon the conventional view of patents as private rights for which private-law remedies are appropriate, and instead...

Commentators on antitrust and patent law over the past decade have advanced the view that "patent holdup" poses a serious threat to innovation and consumer welfare. In recent months, however, a more skeptical literature has emerged to challenge patent holdup on both theoretical and empirical...