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Intellectual Property Litigation Patent Litigation

Influence of Lost Profits Damages In Patent Cases

In two recent decisions, the Federal Circuit and a Delaware district court took account of the underlying economic conditions that permit and prevent awards of lost profits, and looked at the implications of those conditions on otherwise unrelated areas of law.

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The Patent Act provides for damages “in no event less than a reasonable royalty.” 35 U.S.C. §284. In many patent cases, that royalty ends up being the measure of damages: a percentage of the infringer’s revenues from the infringing sales.

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