Purging Patent Law of "Private Law" Remedies

This Article rejects the fundamental "private law" premise of patent law remedies that courts should always attempt to make the patentee "whole" in the event of infringement because the overarching aim of patent law is to promote innovation, not to remedy private wrongs. Specifically, make-whole damages may thwart optimal innovation incentives when they concern small components of complex products involving high-switching costs, generate large consumer deadweight losses, result in substantial duplicated costs during the pre-invention R&D process, or create transaction costs far in excess of the value of the invention. In other situations, a patentee should be made more than whole. For example, inducing socially valuable innovations that do not command large profits in the private market such as drugs for rare diseases and technologies for the disabled may require more than make-whole compensation. More generally, the statutory remedies provisions of the Patent Act rest on a flawed foundation. Instead of correcting for private wrongs inflicted on private parties, patent law remedies should be tailored simply to promote the types and levels of innovation that most benefit society, taking into account administrative and error costs. As such, the patent system and its associated remedies should be viewed as part of a public regulatory regime designed to further societal goals rather than a private law system that protects individual interests.