IP: The Role of Consumer Surveys in Proving Patent Infringement Damages

March 15, 2011

The Federal Circuit has increased its scrutiny of damage awards in patent infringement cases - a trend illustrated by its recent decision in Uniloc USA, Inc. v. Microsoft Corp. According to recent Federal Circuit decisions, damage awards in patent infringement cases must be supported by sound economic theory and should specifically relate to the claimed invention's "footprint in the marketplace." In addition, where a patent covers only one feature of an accused product, a patent holder wishing to present evidence regarding the overall profitability of an accused product must demonstrate that the patented feature helped create consumer demand for the product or its components.

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Christopher K. Larus


Chair, National IP and Technology Litigation Group

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