Using Claim Construction To Impact Damages Analyses

Law360, New York (June 6, 2011, 6:38 PM EDT) -- Patent litigants’ damages strategies should shape claim construction, not be shaped by it.

Patent litigants often consider only liability issues, including infringement and invalidity, when determining claim construction strategies. Plaintiffs attempt to capture the accused products while excluding threatening prior art. Defendants attempt the opposite. Both sides also should consider a third area in which to shape the case during claim construction: the potential for establishing or eliminating potential noninfringing alternatives that will impact the damages analysis.

Patent damages must be evaluated in the context of...
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