Elite Research Travel Grants 2020

Abstract:

Visiting Researcher at Berkeley Law during ph.d. project on damages. My thesis will contribute to the field of damages calculations in intellectual property (“IP”) matters. I investigate what types of proof and reasoning sway (and should sway) European courts when they apply a counterfactual analysis and determine what would have happened if an infringement had not occurred or an illegal injunction had not been granted. For the court applying a counterfactual analysis, there exists a tension between factual and theoretical information. Factual information tells us what happened in specific circumstances, for instance the infringer’s revenue during the infringement period. Theoretical information tells us what theoretically should happen under certain circumstances, for instance if a competitor enters a monopoly market, prices should fall. Factual information can often be documented with high certainty, but it cannot say what would have happened in a counterfactual scenario. To do so, theoretical information is needed. But it is difficult to prove the results of theoretical information and reasoning with the same degree of certainty as factual information. To better understand how courts use counterfactual analyses, it is important to understand how they tackle theory and fact. I will investigate this issue in relation to European (in particular Danish) courts and answer three questions:1)What types of proof and reasoning sway courts in counterfactual analyses and why?2)How does the legal approach compare to a strictly economic approach?3)Based on 1) and 2), can we create normative suggestions for a new approach to counterfactual analyses?