tag:blogger.com,1999:blog-1454051731189268002.post4289154625759230108..comments2024-03-27T11:29:23.559-03:00Comments on Sufficient Description: Relevance of Infringer’s Outside Option in Non-infringing Alternative AnalysisUnknownnoreply@blogger.comBlogger2125tag:blogger.com,1999:blog-1454051731189268002.post-20132738275539400502015-09-15T10:05:36.921-03:002015-09-15T10:05:36.921-03:00Thank you for your comments, which are well taken....Thank you for your comments, which are well taken. Re you first point, see today's post. Re your second point, I agree that my example ignores all sorts of real world frictions. I’m not sure whether that allows exploitation of the patent in the way you describe. While the patentee is not selling below cost, that strategy is essentially predatory pricing and I expect it would be considered an abuse of dominant position contrary to s 79 of the Competition Act. Also, my understanding is that even apart from the legality, predatory behaviour is difficult to sustain in practice because it requires sustaining losses – or at least forgoing substantial revenue – in the short term in order to profit in the long term, but long-term profitability is not guaranteed because of the possibility of re-entry by the competitor once prices are raised. Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.comtag:blogger.com,1999:blog-1454051731189268002.post-90829568370161997162015-09-11T13:04:08.534-03:002015-09-11T13:04:08.534-03:00Good morning Prof. Siebrasse
Very interesting ana...Good morning Prof. Siebrasse<br /><br />Very interesting analysis as usual. A couple of comments:<br /><br /> - My reading of the case is that the FCA has concluded (rightly or wrongly) that the NIA defence will typically be open only to unintentional infringers. The "but for" reconstruction cannot simply be based on the proposition that "had we only known the court would have found the patent valid"; otherwise, the actions of the defendant in the real world will be held against them (i.e. if the NIA was really such a good idea, why did you decide to roll the dice?)<br /><br /> - In terms of a damages award being limited to the value of the patent, your example ignores the fact that there are frictions in the real world, and if the patent holder has a significant operating cost advantage ($3,000/kg) over all other firms, it can use that to compete these firms out of the market and then raise prices. In short, the value of a monopoly can often be more valuable than the particular cost savings (or value) of the technology that is being patented. Whether this should be the goal of the patent system is certainly debatable, but it is perhaps a way of squaring the FCA's ruling with its commentary on limiting damages to the value of the patent.<br /><br />Thank you again for the thought-provoking piece. Interested in your thoughtsEphraimhttps://www.blogger.com/profile/09954198179392682995noreply@blogger.com