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Sarnoff, Joshua D. --- "Flexible Application of Injunctive Relief in Intellectual Property Enforcement (with Reference to Lessons from the Emerging US Jurisprudence)" [2009] ELECD 369; in Li, Xuan; Correa, M. Carlos (eds), "Intellectual Property Enforcement" (Edward Elgar Publishing, 2009)

Book Title: Intellectual Property Enforcement

Editor(s): Li, Xuan; Correa, M. Carlos

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446526

Section: Chapter 6

Section Title: Flexible Application of Injunctive Relief in Intellectual Property Enforcement (with Reference to Lessons from the Emerging US Jurisprudence)

Author(s): Sarnoff, Joshua D.

Number of pages: 35

Extract:

6. Flexible application of injunctive
relief in intellectual property
enforcement (with reference to
lessons from the emerging US
jurisprudence)
Joshua D. Sarnoff1

INTRODUCTION

Although the existence of a right normally implies the existence of
a remedy for its violation, substantial judicial discretion may exist
in determining what particular remedy to apply. Such discretion
provides flexibility to accomplish policy goals, and thus may be con-
sidered one of many important `policy levers' that may be applied to
accomplish legislative purposes and enhance social welfare, without
creating excessive specificity or differentiation in the legislation
itself.2 Retail differentiation of remedies by judges in particular cases
may be less risky for innovation policies, less costly to administer,
more sensitive to contextual information or more politically feasible
than wholesale differentiation of rights and remedies at the legisla-
tive level.3 Such legislative specificity, moreover, would encourage
rent-seeking. Few (except perhaps lawyers) would want intellectual
property legislation to look like the tax code or environmental
regulations.
In both common law and civil law jurisdictions, some form of
equity jurisprudence invariably exists as an alternative to or correc-
tion to a more rigid, codified, and universal system of enforcing legal
rules, whether or not this alternative system of justice is applied by
separate municipal courts.4 Nevertheless, separate courts of equity
have a long pedigree, tracing back at least to Roman law.5 The basic
nature of equity jurisprudence is for courts to have `jurisdiction in

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cases of ...