Patent Infringement

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Patent Infringement

Patent infringement generally involves the commercial use of a protected invention without permission from the patent owner during the statutory term of the patent.

Patent Infringement Damages

Patent infringement damages are awarded in conjunction with Title 35, Section 284 of the US Code, which states that “the court shall award the (successful) claimant damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.”

Patent infringement damages experts typically base their calculations in accordance with numerous case precedents, including Panduit v. Stahlin Bros. Fibre Works and Georgia-Pacific v. United States Plywood. The basic remedy available to patent owner plaintiffs is the award of the amount of profits on sales the patent owner would have made in the market but for the infringement. Under Panduit, a successful plaintiff must prove that:

  • There was economic demand for the patented product or technology
  • There was an absence of acceptable non-infringing substitutes
  • The patent owner would have had the capability to exploit such demand
  • The amount of the profit that would have been made
Reasonable Royalty

Patent infringement damages are oftentimes calculated by the application of a reasonable royalty when actual damages in the form of lost profits cannot be proved. According to Section 284, the patent owner is entitled to receive, at a minimum, a reasonable royalty as payment for the infringement. Reasonable royalty calculations are typically performed in conjunction with the fifteen factors set forth in the Georgia-Pacific case. In situations where the plaintiff does compete in the marketplace but could not have realistically captured all of the infringing sales, a hybrid approach featuring both a lost profits analysis and a reasonable royalty analysis is often utilized to calculate patent infringement damages. 

IPmetrics patent infringement damages experts have performed analyses in numerous cases with the lost profits and reasonable royalty analyses having been submitted to support accurate awards and settlements in a variety of jurisdictions and industries.

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