Using Consumer Surveys to Prove Patent Infringement Damages at Trial

December 1, 2011

Proving damages in patent infringement cases just keeps getting harder. The Federal Circuit’s decision in Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011), illustrates the increased scrutiny damage awards in patent infringement cases have received in the past few years. In Uniloc, the court explained that damage awards in patent infringement cases must be supported by sound economic theory and tied to the patented invention’s “footprint in the marketplace.” And, where a patent covers only one feature of an accused product, Federal Circuit decisions also require that a patent holder wishing to present evidence regarding the overall profitability of the accused product demonstrate that the patented feature creates consumer demand for the product or its components.

Reprinted with permission from the December 2011 edition of the Law Journal Newsletters. © 2012 ALM Media Properties, LLC. All rights reserved.

The articles on our website include some of the publications and papers authored by our attorneys, both before and after they joined our firm. The content of these articles should not be taken as legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or official position of Robins Kaplan LLP.


Christopher K. Larus


Chair, National IP and Technology Litigation Group

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