Private Law Theory

Pamela Samuelson and Mark P Gergen, The Disgorgement Remedy of Design Patent Law, 108 California Law Review (forthcoming, 2020), available at SSRN. The law of design patents continues to evolve in dramatic ways. The law of remedies must also adapt to serve the underlying goals of design patent law and restitution. In creating and interpreting the disgorgement remedy, Congress and the Supreme Court have caused a crisis with unintended consequences. They have provided insufficient guidance on how to construe the remedy. Congress added this remedy to cure a perceived remedy deficit, but Congress crafted it too bluntly – authorizing disgorgement of ‘total profit’ from one who sells, without a license from the owner, articles of manufacture that apply a patented design or colorable imitation … (more)

[Caprice Roberts, JOTWELL, 25 June]

First posted 2019-06-25 12:05:11