Patent Injunctions, Economics, and Rights

Adam Mossoff and Eric R. Claeys

The Journal of Legal Studies, 2021, vol. 50, issue S2, S129 - S149

Abstract: Richard Epstein has long defended classical liberalism, property rights, and private ordering, including the presumption that a patent owner deserves an injunction against ongoing infringement. We agree with Epstein that injunctions should be a presumptive remedy for infringement, but we have reservations about his consequentialist, law and economics justification for this position. Law and economics justifications struggle to explain why the state may use coercion and the implied threat of force to enforce policies written into law. By contrast, rights-based justifications can supply such an explanation, and we illustrate by showing how a Lockean theory of rights based in a metaethics of flourishing (eudaimonism) justifies both a patent and an injunctive remedy for violations of a patent. We also address misconceptions that Epstein and other consequentialists hold toward rights-based justifications: that such justifications make policy prescriptions without considering social consequences and that they are not as determinate as consequentialist justifications.

Date: 2021
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