REVISION: When Nominal is Reasonable: Damages for the Unpracticed Patent

By Oskar Liivak

To obtain a substantial patent damage award via reasonable royalties, a patentee need not commercialize the patented invention; infringement is all that is needed. This surely incentivizes patenting but it disincentivizes innovation. Why commercialize yourself? The law allows you to wait for others to take the risks, and then you emerge later to lay claim to “in no event less than a reasonable” fraction of other people’s successes. Today, it is rational to be a patent troll rather than an innovator. This troll enabling interpretation of reasonable royalties is wrong as a matter of patent policy and, surprisingly, it is also wrong as a matter of patent history and statutory interpretation. The creation of reasonable royalties by the courts in the nineteenth century did mark a significant change to patent damages but it was nowhere near as sweeping as today’s interpretation would suggest. Up to the mid-1800s, the existing routes to patent damages were stringent, available only ...

Oskar Liivak Professor of Law
Photo of Oskar Liivak

Contact Information

Cornell Law School
224 Myron Taylor Hall
Ithaca, NY 14853-4901

Phone: (607) 255-1715
Fax: (607) 255-7193


Bonnie Jo Coughlin
Cornell Law School
213 Myron Taylor Hall
Ithaca, NY 14853-4901

Professional Biography

Oskar Liivak, Professor of Law, graduated from Rutgers College with highest honors in 1994, received a Ph.D. 2000 in physics from Cornell University focusing on techniques for determining protein structure, and received a J.D. from the Yale Law School in 2005.

From 2000 to 2001, he was a post-doctoral scientist working on physical realization of quantum computing in the Quantum Information Group at IBM's Almaden Research Center in San Jose, California. Prior to law school, he served as a patent agent in the Boston office of Fish and Richardson P.C. Most recently, Professor Liivak served as a law clerk to Judge Sharon Prost on the United States Court of Appeals for the Federal Circuit.


B.A. 1994, Rutgers College
Ph.D. 2000, Cornell University
J.D. 2005, Yale Law School