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Sarnoff, Joshua D. --- "Lessons from the United States in Regard to the Recent, More Flexible Application of Injunctive Relief" [2010] ELECD 560; in Correa, M. Carlos (ed), "Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules" (Edward Elgar Publishing, 2010)

Book Title: Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules

Editor(s): Correa, M. Carlos

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849801072

Section: Chapter 3

Section Title: Lessons from the United States in Regard to the Recent, More Flexible Application of Injunctive Relief

Author(s): Sarnoff, Joshua D.

Number of pages: 32

Extract:

3 Lessons from the United States in regard
to the recent, more flexible application of
injunctive relief
Joshua D. Sarnoff*


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 considered one
of many important `policy levers' that may be applied to accomplish leg-
islative purposes and enhance social welfare, without creating excessive
specificity or differentiation in the legislation itself.1 Retail differentiation
of remedies by judges in particular cases may be less risky for innovation
policies, less costly to administer, more sensitive to contextual informa-
tion, or more politically feasible than wholesale differentiation of rights
and remedies at the legislative level.2 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 correction for
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.3 Nevertheless, separate courts of equity have a long



* The author thanks Michael Carroll, Peter Jaszi, and David Ryan for helpful
insights and Ida Wahlquist-Ortiz for research assistance.
1
See Michael W. Carroll, `Patent Injunctions and the Problem of Uniformity
Cost', Mich. ...