ABSTRACT
Private law governs interactions among private parties. A large body of private law theory holds that private law is aimed at corrective justice: doing justice as between the two parties to a private interaction (the private law dyad). This in contrast to public law, the law of state-citizen interactions, whose purpose is usually said to be the pursuit of society-wide fairness, often understood as distributive justice.
Torts, contracts and property are the three classic areas of private law in common law jurisdictions. A sizeable literature now concerns itself with classic private law topics as they apply to IP. Articles, and now a fine monograph (Patrick R Goold, IP Accidents (2022)), argue that patent law’s strict liability standard is out of touch with modern tort theory, which emphasizes that private law liability must be grounded in fault.
In this Article I enter that discussion with a defense of the current liability regime in patent law, which is a distinct form of ‘strict liability’. But before wading into those waters, it is first necessary to understand which aspects of patent law belong in the domain of private law in the first place. It is not as simple as saying patents are property and therefore private law applies …
Merges, Robert P, Patent Infringement, Private Law, and Liability Standards (May 4, 2024), UC Law Journal, Forthcoming.
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