Strategies and Trends in Intellectual Property Law Damages


Intellectual Property Damages in some ways mirror commercial law damages principles but there are unique aspects that affect strategy and tactics. Statutory Damages are available only in certain types of cases. These depend on compliance with formalities, and very specific causes of action. When comparing patent law damages to commercial cases, on unique aspect is that in commercial cases, often much effort is expended in determining parties' intent and the benefit of the bargain. Reasonable royalty methodology deals with hypothetical bargains, yet cases permit, indeed, require evidence and analysis of real world business and economic considerations. Those causes of action that expressly permit recovery of Defendant's profits provide a powerful remedy, especially where there is burden shifting on cost deductions. Because patents typically involve individual product sales or, often, only incremental improvements in technology, compensatory damages require careful considereration of the context of the sale of real products relative to the improvements. The Entire Market Value rule and the 25% rule are, under current case law suspect.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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