The Supreme Court has made fee shifting (i.e., award of attorney’s fees) easier in patent cases reversing the framework laid out in Brooks Furniture for determining when a case is “exceptional”. Now, under Octane Fitness, LLC v. ICON Health & Fitness, Inc., (S.Ct. 2014), an exceptional case in which the court may, in its discretion, award attorney’s fees is simply one that … [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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Federal Circuit creates a new defense to inducement of patent infringement In Commil v Cisco (Fed. Cir. June 25, 2013), the patent owner sued the alleged infringer for inducement of patent infringement. This occurs when a third party may not necessarily be infringing the patent but is encouraging another to infringe the patent. To prove inducement of infringement, the patent … [Read more...]
A sues B for patent infringement for making a product that infringes on A’s patent. A and B settle the case with B promising not to produce product. Typically, if money is being transferred between the parties, B pays A money for past damages caused by B for past acts of patent infringement. In the following case, the patentee (A) paid B money not to bring the product into … [Read more...]
Willful infringement and enhanced damages Avoiding willful infringement is important because a court has the discretion to increase damages up to three times and award attorney’s fees if the patent is willfully infringed Exculpatory opinions of counsel regarding non infringement of a patent reduce the likelihood that a defendant would be found liable for willfully infringing a … [Read more...]
Infringement may be direct or indirect. In direct infringement, a person makes, uses, sells, offers for sale, or imports the patented product or practices the patented method. In indirect infringement, the person induces another to infringe (i.e., active inducement of infringement) or contributes to the infringement by another. In Global Tech. v. Pentalfa, the narrow issue … [Read more...]
The remedies for patent infringement varies depending on whether willful infringement is found. If the infringement is found to be willful, the Courts are allowed treble (i.e., multiple by three) any damage award. In order to reduce the potential for finding willfull infringement, opinion of counsel as to the non-infringement of an accused infringer’s product or method is … [Read more...]
The typical payment in a patent litigation dispute flows from the alleged infringer to the patentee. The payment may represent damages incurred by the patentee to make the patentee whole and/or a licensing royalty fee if the patentee permits the alleged infringer to continue selling the patented product or method. The following case illustrates a “reverse payment” situation … [Read more...]