Means and Meaning in Patent Remedies

Professor Sichelman’s article on “Purging Patent Law of Private Law Remedies” offers a welcome and useful perspective on the reform of patent remedies. In this comment I critique some of his assumptions regarding the “private” nature of patent and other remedies, then turn to discussing several examples of existing and underutilized tools, such as “reverse liability” rules, that might accomplish much of Professor Sichelman’s agenda without necessarily fomenting a radical re-conceptualization of patent remedies doctrine. Along the way I suggest how deployment of such tools might play out in a variety of current patent controversies, including Sichelman’s example of patent “trolls,” as well as FRAND licensing and pharmaceutical “pay for delay” agreements