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Damages and Injunctions in the Protection of Proprietary Research Tools

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  • Mark Schankerman
  • Suzanne Scotchmer

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 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

  • Mark Schankerman & Suzanne Scotchmer, 1999. "Damages and Injunctions in the Protection of Proprietary Research Tools," NBER Working Papers 7086, National Bureau of Economic Research, Inc.
  • Handle: RePEc:nbr:nberwo:7086
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    References listed on IDEAS

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    1. Jerry R. Green & Suzanne Scotchmer, 1995. "On the Division of Profit in Sequential Innovation," RAND Journal of Economics, The RAND Corporation, vol. 26(1), pages 20-33, Spring.
    2. 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.
    3. Suzanne Scotchmer, 1991. "Standing on the Shoulders of Giants: Cumulative Research and the Patent Law," Journal of Economic Perspectives, American Economic Association, vol. 5(1), pages 29-41, Winter.
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    Cited by:

    1. 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.
    2. 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.
    3. 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.

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    JEL classification:

    • K0 - Law and Economics - - General

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