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Using Consumer Surveys to Prove Patent Infringement Damages at Trial

By Christopher K. Larus and Bryan J. Mechell

Proving damages in patent infringement cases just keeps getting harder. The Federal Circuit's decision in Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011), illustrates the increased scrutiny damage awards in patent infringement cases have received in the past few years. In Uniloc, the court explained that damage awards in patent infringement cases must be supported by sound economic theory and tied to the patented invention's “footprint in the marketplace.” And, where a patent covers only one feature of an accused product, Federal Circuit decisions also require that a patent holder wishing to present evidence regarding the overall profitability of the accused product demonstrate that the patented feature creates consumer demand for the product or its components.

As a result, proof of an invention's real value in the marketplace has become an essential component of a claim for infringement damages. A well-crafted consumer survey can provide powerful evidence of that value ' or a strong refutation of the same. Though long used in trademark, false advertising, and antitrust cases, the use of consumer surveys in patent cases is a relatively recent phenomenon. Counsel responsible for managing patent litigation should understand the potential role that survey evidence can play at trial.

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