Abstract

     This article examines the equitable remedy of restitution for unjust enrichment in the IP rights infringement context. Instruction in Equity’s “notion” of unjust enrichment and the remedy for it was once standard fare in the American law school. That is no longer the case, even though “[a]s the American economy completes its transition to a data economy, unjust enrichment in equity will increasingly become the principal remedy to protect economic interests.”  Law school-sponsored litigation clinics are fine, but not at the expense of basic doctrine. Though this primer covers critical common law doctrine that every IP rights litigator needs to have internalized, the term common law being employed broadly in juxtaposition to the civil law tradition, a primer is no substitute for systematic instruction in Equity’s institutions and remedies; the core fiduciary relationships of agency and trust; and the fiduciary principle generally. Particularly in the IP rights infringement context, “restitution principles serve to illuminate legislative purpose; to identify the points at which a given statute varies a rule that would otherwise obtain at common law; and as an aid to interpretation of a doubtful case.”