Tips On Patent Infringement Damages Analysis

Tips On Patent Infringement Damages Analysis

In today's technology intensive economy, intellectual property is a key asset of firms. Any patents you may hold as a business owner may need to be defended aggressively using litigation. In many cases, patent infringement damages analysis has resulted in significant amounts being awarded. Often the measurement of damages resulting from patent infringement requires an analysis of what would have happened but-for the alleged wrongful conduct as compared to what actually occurred. Various measures can be used to estimate but-for sales. According to the Federal Circuit, compensatory damages ought to be equal to lost profits caused by the infringement. Lost profits include both the profits on lost sales and profits lost due to price erosion. Price erosion implies that but-for market (or the market without the infringing sales) prices would be higher. When lost profits cannot be proven, the minimum payable amount is a reasonable royalty. A royalty is a usage based payment made by the licensee to the licensor for ongoing use of the patent. A starting point for determining whether profits have been lost due to the infringement is the Panduit Test. It requires you to establish demand for the patented product, the absence of acceptable non-infringing substitutes, manufacturing and marketing capability to exploit the demand, and the amount of profit that would have been made. If these conditions are met, the difference between your but-for profits and actual profits represents your lost profit damages. Modeling the but-for behavior of both the patent infringer and your behavior needs to be done. Economic factors need to be taken in consideration to do so. This is best done by an expert experienced in this field. The Georgia-Pacific factors are a starting point in determining reasonable royalty. Like the Panduit Test, it considers substitutes important in determining a patent's value. Choose a firm which is experienced in measuring damages for disputes involving patent infringement. Check whether it has dealt with companies facing similar issues, which preferably belong to the industry your company operates in. The firm's experts should be qualified, accredited, and knowledgeable. They should be up to date with happenings in this field. The BVA Group professionals are well versed with patent infringement damages analysis. Contact them today for an appointment!

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