Patent Injunctions, Economics, and Rights


This essay uses ongoing debates about the remedies available for patent infringement to explore some broader questions about normative legal theory. The essay was written for a festschrift for Richard Epstein. Throughout his career, Epstein has systematically defended classical liberal views about property rights, freedom of contract, and private ordering—like the presumption that a patent holder deserves an injunction against ongoing infringement. When that presumption was called into serious question by the Supreme Court’s 2006 decision in eBay v. MercExchange, Epstein defended the traditional presumption on law and economic grounds. We agree with Epstein that injunctions should be a presumptive remedy for patent infringement. But we have learned from Epstein that foundations matter, and we have reservations about the consequentialist and law and economic grounds on which Epstein defends injunctions in patents and property rights more generally. In this essay, we explain why a Lockean theory of rights supplies a more satisfying foundation for property rights and markets than consequentialist and law and economic foundations.