Ex-Post Liability Rules in Modern Patent Law

This book examines alternative ways of protecting patent rights using the law and economics framework of property and liability rules. Traditional compulsory licenses are compared with the most recent discussions on the choice between granting or denying injunctive relief for patents (ex post liability rules). The debate about strategic behaviour triggered by the patent system, especially in the aftermath of the U.S. Supreme Court decision in eBay v. MercExchange is discussed along with policy perspectives on both sides of the Atlantic. The problem of calculating the level of compensation, which is one of the most important critiques against the use of liability rules in patent law, is also examined in depth. The book concludes by suggesting that a coherent patent system could opt for property rules in general cases while leaving enough space for exceptions and limited liability rules. Curtailing exceptions and limitations to patent rights, including the use of patent liability rules, could otherwise risk stifling innovation and even contradicting the goals of patent law.

Rosa Castro Bernieri is a PhD researcher at the University of Bologna and Erasmus Rotterdam University and this book corresponds to her doctoral dissertation in the European Doctorate in Law and Economics (EDLE). She holds a Law degree from the Universidad Catolica Andres Bello in Venezuela and a Master degree in Law and Economics from the University of Bologna and Hamburg University. She has lectured on Intellectual Property at the University of Bologna and University New York Tirana. Her research and teaching interests include law and economics, international intellectual property and patent law with a focus on biotechnology, health and development. In the last few years, she has authored several articles on these issues.