The Sword and the Shield - How Recent Developments in Patent Damages Law Can Help Your Case as Both a Defendant and a Plaintiff

The past two years have seen significant evolution in patent damages law. A line of cases beginning with Cornell University v. Hewlett-Packard Co., No. 5:01-cv-01974 (N.D.N.Y. March 30, 2009), and continuing through (most recently) Uniloc USA Inc. v. Microsoft Corp., 632 F.3d 1292, 98 USPQ2d 1203 (Fed. Cir. 2011) (81 PTCJ 275, 1/7/11), has heightened the scrutiny with which courts approach reasonable royalty damages as calculated by the appropriate royalty base (entire market value rule) and royalty rate (comparable licenses, apportionment, or 25 percent rule). The conventional wisdom is that the progression of case law has inured almost exclusively to the benefit of accused infringers, by making it more difficult for patent holders to obtain large damages verdicts. But these cases present opportunities for patent holders as well, by providing patent holders with a framework for constructing a more persuasive damages case.

Reproduced with permission from BNA's Patent, Trademark & Copyright Journal, 82 PTCJ 126, 05/27/2011. Copyright 2011 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com/