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This chapter addresses a special category of cases in which an asserted patent is, or has been declared to be, essential to the implementation of a collaboratively developed voluntary consensus standard, and the holder of that patent has agreed to license it to implementers of the standard on terms that are fair, reasonable, and nondiscriminatory (FRAND).This chapter explores how the existence of such a FRAND commitment may affect a patent holder’s entitlement to monetary damages and injunctive relief. In addition to issues of patent law, remedies law, and contracts law, we consider the effect of competition law on this issue.
This chapter provides a critical review of the literature relating to remedies for patent infringement in the context of complex products, with a focus on the underlying theoretical issues of holdup, holdout, and royalty stacking. Issues considered here include: the conceptually appropriate benchmark for a fair return to a patentee; the theory of holdup and mechanisms by which holdup can be mitigated; placing the holdup debate within the context of property rules vs. liability rules; forcing patentees to accept lower royalties though holdout; and a review of empirical evidence related to holdup and royalty stacking.
This chapter gives a detailed discussion of the remedies that are available on an application for judicial review. It discusses the main procedural rules on remedies, before introducing the remedies of certiorari, prohibition, mandamus, declaration (including suspension of a declaration and orders of temporary validity), injunction (including interim injunction), and damages, restitution and recovery of a sum due. It discusses the discretionary nature of remedies, including their relationship with statutory appeals mechanisms, prematurity of application, delay, waiver, acquiescence, the undeserving applicant, futility, no prejudice and inevitability. The chapter concludes with a discussion of judicial review proceedings continued as though begun by writ.
As the list of contentious cases concerning issues of state responsibility brought before the International Court of Justice (the Court) continues to grow, a closer consideration is demanded of the most common remedy granted by the Court – the declaratory judgment. In particular, while the Court continues to issue declarations intended to constitute ‘appropriate satisfaction’, it also appears that the Court is – or is attempting – to use declarations more creatively in certain circumstances. This immediately provokes a question as to not only the proper role of declaratory judgments, but also whether and to what extent variations in the nature of the obligations owed by states, or the nature of their internationally wrongful acts, gives rise to a coherent differentiation in the remedies granted by the Court.
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