Professor Christopher Seaman has recently posted two new papers to ssrn. The first is:
Reconsidering the Georgia-Pacific
Standard for Reasonable Royalty Damages for Patent Infringement,
2010 BYU Law Review (forthcoming).
And the second is:
An Uncertain Future for Section 5 of the Voting Rights Act: The Need for a
Revised Bailout System
Read the abstracts after the jump.
Reconsidering the Georgia-Pacific Standard for Reasonable Royalty Damages for Patent Infringement, 2010 BYU Law Review (forthcoming).
Determining damages for infringement is one of the most important and controversial issues in contemporary patent litigation. The current fifteen-factor Georgia-Pacific standard for determining a reasonable royalty has become increasingly difficult for juries to apply in patent disputes involving complex, high-technology products, resulting in unpredictable damage awards that tend to overcompensate patentees.
This Article proposes an alternative standard to Georgia-Pacific when an acceptable noninfringing substitute exists for the patented technology. Specifically, in a hypothetical bargain for a patent license, both economic and negotiation theory explain that a rational patent licensor would agree to pay only the costs it would incur to adopt and implement a noninfringing substitute technology, plus any lost benefits related to the substitute's use. Indeed, the Federal Circuit already has recognized an analogous limitation on damages in the context of lost profits, although it has defined the universe of alternatives too narrowly by refusing to consider imperfect substitutes for the patented technology.
An Uncertain Future for Section 5 of the Voting Rights Act: The Need for a Revised Bailout System
In Northwest Austin Municipal Utility District No. 1 v. Holder ("NAMUDNO"), 129 S. Ct. 2504 (2009), the Supreme Court declined to decide one of last Term's most prominent issues: the constitutionality of the 2006 renewal of Section 5 of the Voting Rights Act. Instead, the Court adopted an unexpected statutory construction permitting the plaintiff to seek an exemption called "bailout" from continued coverage under this provision. But even though the Court avoided directly ruling on its constitutionality, NAMUDNO left little doubt that Section 5 remains on shaky constitutional ground.
A revised bailout system is likely the best approach for placing Section 5 on a more solid footing. To date, however, bailout has been little used; despite predictions made during the previous renewal of Section 5 in 1982, only a handful of the thousands of covered jurisdictions have sought and successfully obtained bailout. This paper suggests that Congress should adopt two major changes to the existing bailout system. First, Congress should implement an "automatic" bailout that would unilaterally remove from coverage all jurisdictions that have not violated the major provisions of the Voting Rights Act since the 1982 renewal. Second, the current requirements for obtaining bailout—which this paper calls "optional" bailout—should be revised to make it easier for jurisdictions to determine whether they are eligible. Adopting these changes will more narrowly tailor Section 5 to apply to jurisdictions with a recent history of discrimination in voting, and thus make it more likely to survive constitutional scrutiny the next time the issue is before the Court.
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