A New Checklist For Patent Damages

Law360, New York (April 19, 2010, 12:10 PM EDT) -- 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...
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