tag:blogger.com,1999:blog-1454051731189268002.post3045905118030791576..comments2024-03-27T11:29:23.559-03:00Comments on Sufficient Description: Nova v Dow: The IntuitionUnknownnoreply@blogger.comBlogger2125tag:blogger.com,1999:blog-1454051731189268002.post-21941818470879871372023-03-08T14:17:14.149-04:002023-03-08T14:17:14.149-04:00I agree that under the 'but for' approach,...I agree that under the 'but for' approach, an accounting of profits would look like maximum willingness to pay, but that isn't like a royalties case - in a reasonable royalties award, the patentee typically gets 25-50% of MWP, while in a 'but for' accounting the patentee gets 100% of MWP. That's why an accounting isn't a compulsory licence - it is a solution to the catch-me-if-you-can problem; as Zinn J pointed out in Rivett 2009 FC 317 ¶ 23, it incentivizes ex ante licensing because the infringer is worse off than it would have been had it taken a licence ex ante. <br /><br />Still, maybe that is the intuition, even if I don't find it very persuasive.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.comtag:blogger.com,1999:blog-1454051731189268002.post-39311817595389053762023-03-08T09:35:18.081-04:002023-03-08T09:35:18.081-04:00Without opining on whether this is "right&quo...Without opining on whether this is "right" or "wrong", it seems to me a strong(er) motivating intuition is the idea that: (1) patent infringement is a strict liability tort of some variety such that there can be no condonement of the economic concept of "efficient breach"; and (2) were it so, then every accounting of profits case would end up reducing to a royalties case. <br /><br />In other words, taken to its logical conclusion, Nova's argument would permit an extensive explanation of the economics and motivations of the defendant to (in effect) excuse their infringement; and it would also (in effect) permit deductions of costs/profits of such hypotheticals that the "accounting of profits" would end up looking rather like the "maximum willingness to pay". <br /><br />I know you've addressed this elsewhere - but it seems the base intuition there is that Courts seem to react violently to anything that vaguely resembles "compulsory licensing", whether expressly stated or not (as you say, Justice Stratas used this theme but Justice Rowe did not - although implicit in his discussion of the methodology of calculating profits seems to be the reflection that deducting hypothetical profits from another market would end up in this royalty-scenario).KP Siunoreply@blogger.com