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Patient Patents: Can Certain Types of Patent Litigation Be Beneficially Delayed?

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Patent plaintiffs today are often denied injunctions and awarded, instead, ongoing royalties. This change was made for reasons that have nothing to do with the pace of litigation. But the change turns out to meaningfully reduce the cost of delay. After all, delay is costly in cases that involve injunctions, because every extra day of litigation is another day during which the accused infringer might wrongfully use the patented technology. In cases without injunctions, however, delay simply takes a day for which the accused infringer would pay a court-ordered ongoing royalty and transforms it into a day for which the accused infringer will instead pay court-ordered cash damages. Either way, the infringer is paying a fee. Either way, that fee is determined by the court. As a result, certain types of patent cases should today slow down, making room for tailored, accuracy-enhancing delays that previously seemed too costly to embrace.

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