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    Jurimetrics Summer 2020

    Volume 60 Issue 4  

    Technology

    Foreword

    Douglas J. Sylvester and Diana M. Bowman

    Complex products are, today, ubiquitous. While some may have sought to counter this statement twelve months ago, the realities of Covid-19 have, we would argue, negated one’s ability to do so. Especially given that any individual inclined to argue would have to do so via a tweet, through some form of online video conferencing platform, albeit Zoom, Webex, or similar, via email or a text message from a smart phone, any such objection would be rendered moot instantly.

    SciTech Corner: Book Commentaries on Patent Remedies and Complex Products

    Technology

    How Will the European Patent Judges Understand Proportionality?

    Martin Husovec

    Patent Remedies and Complex Products: Towards a Global Consensus is an excellent piece of scholarly work. It blends comparative and forward-looking analyses that enable rapid understanding of existing legal systems and specific problems, while keeping in mind the original goals of the patent system. In this contribution, I would like to expand on the view that courts in Europe and elsewhere should increasingly moderate injunctive relief beyond the confines of competition law.

    Technology

    Reasonable Royalties in Patent Remedies and Complex Products: Toward a Global Consensus

    Amy L. Landers

    Reasonable Royalties, a chapter authored by seven esteemed law professors in Patent Remedies and Complex Products: Toward a Global Consensus, provides a wide-ranging analysis of a complicated topic. Directed to patent specialists, this work offers proposals for substantive change aimed toward worldwide adoption. Several of these ideas might require significant judicial oversight, or, alternatively, that legal authorities reformulate existing law. Because of their complexity, many of these proposals are implementable in jurisdictions where damages are set by the court.

    Technology

    Patent Remedies and Complex Products: Remarks on Top-Down Analysis, Lost Profits, and Bilateral Bargaining

    Anne Layne-Farrar

    I began reading Patent Remedies and Complex Products: Toward a Global Consensus thinking that I would be able to point out omitted issues or sides of a particular debate that chapter authors had missed or treated too skimpily. I quickly realized that my review would be nothing of the sort. Each chapter presents a thorough, but pithy, discussion of the state of a particular intellectual property legal area (reasonable royalties, lost profits, injunctions, standard essential patents, etc.) in the United States, the United Kingdom, continental Europe, and key countries across Asia. The analysis is neutral, presenting the facts, discussing influential caselaw, and contrasting jurisdictions. Each chapter ends with a handful of policy recommendations, but only when the authors were able to reach a consensus.

    Technology

    A Unified Theory of Convoy Goods

    Michael Risch

    In today’s world of complex products, patent damages have no answer to the problem of convoy and collateral goods. Damages are supposed to compensate for the patented innovation only, and yet that innovation is often bundled with—indeed useless without—other parts of a bigger product or unpatented add-on products. These unpatented pieces and products are often called collateral or convoy goods, but there is no uniform theory that deals with them. Courts are left without answers, for example, whether to treat other parts of a product the same as add-on products, whether reasonable royalties or lost profits should apply, and whether traditional patent damages rules should apply.

    Technology

    Can We Get There from Here?

    Allan Shampine

    Patent Remedies and Complex Products: Toward a Global Consensus surveys the state of law, literature, and practice with respect to patents and antitrust with an eye towards best practices. The ultimate goal is to summarize current thinking among many practitioners, moving towards a global consensus as to how policy should be structured. Of course, consensus on where things should be is very different from uniformity of how things actually are. Indeed, the project is motivated in large part because there is no such uniformity. To be clear, uniformity is not desirable in every case.

    Technology

    Comments on Patent Remedies and Complex Products— A U.S. Litigation Perspective

    Richard J. Stark

    Patent Remedies and Complex Products: Toward a Global Consensus comprises a laudable and impressive effort to examine the underpinnings of patent remedies and how these remedies should be applied in our world of ever more advanced multicomponent products. This Comment provides some reactions to and amplifications of the valuable contributions of Patent Remedies and Complex Products from the perspective of U.S. patent and antitrust litigation. More specifically, this Comment focuses on several critical aspects of the calculation of reasonable royalties and injunctive relief, particularly as to standard-essential patents (SEPs).

    Comments

    Technology

    Dark Patterns, Warcraft, and Cybersex: The Addictive Face of Predatory Online Platforms and Pioneering Policies to Protect Consumers

    Brent Bihr

    Consumers find it harder and harder to put down the phone, close the laptop, or shut off the television. Indeed, new research reveals that many adults suffer from a behavioral addiction called internet addiction. This Comment examines the phenomenon of internet addiction through the lens of behavioral psychology, beginning with the psychological research on behavioral addiction theory and the internet. Predatory internet platform developers use behavioral psychology to create an addictive experience designed to keep users online, thereby securing more profit and market dominance.

    Technology

    Drawing a Line: Legislative Proposals to Clarify the CDA, Reinforce Consumer Rights, and Establish a Uniform Policy for Online Marketplaces

    Isaac Rounseville

    Courts face a dilemma in deciding the scope of section 230 of the Communications Decency Act (CDA or Section 230) with respect to online marketplaces: expanded immunity from federal, state, and local civil actions, or no immunity and exposure to a potential flood of lawsuits. This Comment argues that granting expansive immunity is not supported by the CDA’s plain text or legislative history. It also outlines the negative public policy outcomes of expanded CDA immunity, particularly on consumers that cannot recover from anonymous or insolvent online sellers, and details federal legislative proposals to address them.