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Damages and Injunctions in the Protection of Proprietary Research Tools

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  • Scotchmer, Suzanne
  • Schankerman, Mark

Abstract

Profit on proprietary research tools is determined partly by the remedies for infringement, such as damages and injunctions. We investigate how damages under a liability rule and the opportunity for injunctions under a property rule can affect the incentives to develop research tools. We show that the prevailing legal doctrine of damages under the liability rule, called lost profit or reasonable royalty, suffers from a logical circularity which leads to an indeterminacy in permissible damages. This can create insufficient incentives to develop research tools. Incentives can be improved either by a property rule with injunctions or by a liability rule under the doctrine of unjust enrichment.

Suggested Citation

  • Scotchmer, Suzanne & Schankerman, Mark, 1999. "Damages and Injunctions in the Protection of Proprietary Research Tools," Berkeley Olin Program in Law & Economics, Working Paper Series qt0dh221jq, Berkeley Olin Program in Law & Economics.
    • Handle: RePEc:cdl:oplwec:qt0dh221jq
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    References listed on IDEAS

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    1. Jean O. Lanjouw & Josh Lerner, 1996. "Preliminary Injunctive Relief: Theory and Evidence from Patent Litigation," NBER Working Papers 5689, National Bureau of Economic Research, Inc.
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    Cited by:

    1. Jaffe, Adam B., 2000. "The U.S. patent system in transition: policy innovation and the innovation process," Research Policy, Elsevier, vol. 29(4-5), pages 531-557, April.
    2. Nagaoka, Sadao, 2005. "Determinants of high-royalty contracts and the impact of stronger protection of intellectual property rights in Japan," Journal of the Japanese and International Economies, Elsevier, vol. 19(2), pages 233-254, June.
    3. Alexandre Almeida & Aurora A.C. Teixeira, 2007. "Does Patenting negatively impact on R&D investment?An international panel data assessment," FEP Working Papers 255, Universidade do Porto, Faculdade de Economia do Porto.

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