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Patent Infringement: Compensation and Damages
Incisive Media, Pages: 300
CHAPTER 1
Determining the Damages Period
- 1.01 Introduction
- 1.02 The Outer Boundary for the Damages Period
[1] Commercial Cases
[2] Government Cases
[3] Verify Assertion Is Not Barred by Laches
- 1.03 Determining when Infringement Starts
- 1.04 Public Policy Behind the Marking/Notice Requirement
[1] Historical Background
[2] Avoiding Innocent Infringement
[3] Encouraging Patentees to Give Notice to the Public
[4] Encouraging Innovation by Aiding the Public to Identify Patented Articles
- 1.05 Marking/Notice Statute Limits on Damages
[1] Determining if Patentee Is Subject to Section 287(a)
[2] Satisfying the Requirements if the Marking/Notice Statute Applies
[3] Consequences of Not Meeting the Marking/Notice Requirements
- 1.06 Other Limitations and Extensions
[1] Foreseeability and Infringement Under the Doctrine of Equivalents
[2] Product-by-Process Infringement
[3] Design Patents
[4] False Marking and Marking Estoppel
[5] Pre-Issuance Reasonable Royalty Under the American Inventors Protection Act
- 1.07 Questions of Fact and Questions of Law
CHAPTER 2
Determining the Damages Base
- 2.01 Introduction
- 2.02 Product Scope of the Damages Base
[1] The Historical Evolution of the Market Value Rule
[2] Lost Profits and Reasonable Royalty Calculations
[3] Ascertaining the Applicable Facts
[4] Scope of the Patent
[5] Categorizing the Unpatented Components
[6] Determining if Requirements for Coverage Under the Entire Market Value Rule Have Been Met
[7] Determining if Limitations to the Entire Market Value Rule Apply
- 2.03 Geographic Scope of the Damages Base
[1] Introduction
[2] Extraterritorial Reach Allowed
[3] Extraterritorial Reach Not Allowed
[4] Imported Products
CHAPTER 3
Established Royalty Measure of Damages
- 3.01 Introduction
- 3.02 Determining Whether Established Royalty Exists
[1] Paid or Secured Before the Infringement Began
[2] Paid by a Sufficient Number of Persons
[3] Uniformity
[4] Not Under Threat of Suit or in Settlement of Litigation
[5] Comparable Rights
- 3.03 Effects on Adequate Compensation
[1] Relation to Reasonable Royalty
[2] Relation to Lost Profits
CHAPTER 4
Reasonable Royalty Measure of Damages
- 4.01 Introduction
- 4.02 The Hypothetical Negotiation
- 4.03 Factors Used To Determine Reasonable Royalty
[1] Georgia-Pacific Factors
- 4.04 Applying the Facts
[1] Court Discretion
[2] Throughput or Paid-Up Licenses
[3] Percentage of Sales
[4] “Rule of Thumb”
[5] Percentage of Patentee’s Profits
[6] Percentage of Cost Savings
[7] Baseline Adjusted by Georgia-Pacific Factors
[8] U.S. Government as the Infringer
- 4.05 Applying Enhancements and Limitations
[1] Enhancement
[2] Limitation on Reasonable Royalty
CHAPTER 5
Lost Profits Measure of Damages
- 5.01 Introduction
- 5.02 Application of the Panduit Factors
[1] Demand for the Patented Product
[2] No Acceptable Non-Infringing Substitutes
[3] Manufacturing and Marketing Capacity to Meet the Demand
[4] Determining the Amount of Lost Profits
CHAPTER 6
Multiple Recovery, Authorization, and Indemnification
- 6.01 Introduction
- 6.02 Multiple Recovery and Authorization
[1] Types of Infringing Acts and Infringers
[2] Creating Authorization
[3] Boundaries of Authorization
[4] Repair/Reconstruction
[5] Product Sales by Licensee
- 6.03 Indemnification
[1] Obligation of Indemnification
[2] Limitations on Indemnification
[3] Federal Preemption
CHAPTER 7
Enhancements to Damages
- 7.01 Introduction
- 7.02 Increased Damages Under the Damages Statute
[1] Introduction
[2] Two-Part Inquiry: Entitlement and Quantification
[3] Entitlement to Enhanced Damages
[4] Quantification of Enhanced Damages
- 7.03 Attorney Fees Under the Damages Statute
[1] Introduction
[2] Determination of Whether the Case is Exceptional
[3] Determination of the Attorney Fee Amount
- 7.04 Prejudgment Interest Under Damages Statute
[1] Introduction
[2] Awarding Prejudgment Interest is the Norm
[3] Damage Components
[4] Interest Rate and Compounding
CHAPTER 8
Proving Damages
- 8.01 Introduction
- 8.02 Expert Testimony
[1] Historical Admissibility
[2] Applicability of Admissibility Standards
[3] Case Outcome
- 8.03 Record Retention
[1] Adverse Inference
[2] Defenses
CHAPTER 9
Damages Accounting Issues
- 9.01 Introduction
- 9.02 Assessing Expert Testimony: Accounting Standards for Reliability
[1] Generally
[2] Admissibility Under Federal Rule of Evidence 702
[3] Probative Value of Expert Testimony and Limitations
- 9.03 Accounting Issues in Reasonable Royalty Determination
[1] Percentage of Sales (or Revenues) Method
- 9.04 Accounting Issues in Lost Profits Determination
[1] Panduit Factors
[2] Future Lost Profits and Prejudgment Interest
- 9.05 Internal Accounting for Damages Awards
Index
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