Apportionment versus Entire Market Value Rule Damage calculations for patent infringement are based on an apportioned value of the patented feature to the overall accused product. Damages can be based on the entire market value which would increase the damages calculations. However, the patent owner has a satisfy a high bar before being allowed to do so. Apportionment … [Read more...]
Patent damages is defined under 35 U.S.C. §284 and is a monetary award to the claimant to compensate for the infringement, but in no event is less than a reasonable royalty for the use of the invention together with interest and costs.
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Lost foreign profits are defined as profits that the patent owner could have made overseas or outside of the United States. Normally, patent owners can only recover for lost profits that they incur based on a competitor’s activity within the United States. To put it differently, patent owners generally cannot recover for lost foreign profits based on activity outside of the … [Read more...]
Under the American rule, each party to a lawsuit pays its own attorney’s fees. However, the American rule can be circumvented by statute enacted by the government or by contract through agreement by the parties. In patent litigation, fee shifting is appropriate by statute under 35 U.S.C. § 285. Section 285 states that "the court in exceptional cases may award reasonable … [Read more...]
Summary of Halo case In Halo Electronics, Inc. v. Pulse Electronics, Inc. (S.Ct. June 13, 2016), the Supreme Court recently redefined the standard for determining when enhanced damages under 35 U.S.C. §284 is appropriate and when the Federal Circuit during appellate review can reverse the decision of the district court to award or withhold enhanced damages. Halo directly … [Read more...]
Bottom line: Proving willful infringement is becoming increasingly difficult. Even if the accused infringer is ultimately found liable, and even if it ignores a patent and/or volitionally infringes the patent, the infringer can be absolved of liability for willful infringement if the infringer, during litigation, puts forth a reasonable defense to patent infringement or patent … [Read more...]
Bottom line: Patent damages for patent infringement can be whittled down in circumstances where the patented invention is directed to only one component of a multi-component system, or the claimed invention contains both conventional and inventive elements. To increase the damage award, the inventive component or the essential part of the invention should be characterized as … [Read more...]
Bottom line: Halo Electronics, Inc. v. Pulse Electronics, Inc. (Fed. Cir. 2014) suggests that substantial arguments presented during litigation (i.e., post litigation) for invalidity of a patent may be used as a defense to willful patent infringement even for acts of patent infringement that occurred prior to litigation. In 2002, Halo sent letters to Pulse with an … [Read more...]
In the United States, each party generally pays their own attorney fees. Shifting attorney fees to the non-prevailing party is permitted in certain circumstances. For example, in patent litigation, fee shifting is permitted for exceptional cases. 35 U.S.C. Section 285 states that “the court in exceptional cases may award reasonable attorney fees to the prevailing party.” The … [Read more...]