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Articles

A New Checklist for Patent Damages

April 19, 2010

Articles

A New Checklist for Patent Damages

April 19, 2010

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David Healey

Law360
David Healey
April 19, 2010

In September 2009, the Federal Circuit in Lucent v. Gateway, 580 F.3d 1301, 92 U.S.P.Q.2d 1555 (Fed. Cir. 2009), reinforced two big points on damages:

1)  Damages must be apportioned to the contribution of the patent to the product and the technology.

2)  The hypothetical negotiation must be based only on facts.

On Feb. 5, 2010, in ResQNet.com v. Lansa, Nos. 2008-1365, -1366, 2009-1030 (Fed. Cir. Feb. 5, 2010), the Federal Circuit emphasized that “the trial court must carefully tie proof of damages to the claimed invention’s footprint in the market place.”  The court in ResQNet.com specifically admonished trial courts that “[a]ny evidence unrelated to the claimed invention does not support compensation for infringement but punishes beyond the reach of the statute.” (Id. at 14)

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