A Back-To-Basics Approach To Patent Damages Law

Law360, February 14, 2018, 3:40 PM EST -- For the last 10 years, the Federal Circuit has issued a series of damages opinions specific to the facts of each case, such as Lucent, LaserDynamics and VirnetX. In several of these opinions, it has generalized prior fact-specific holdings into patent law “rules” and attempted to fit each rule to the next unique fact pattern. By converting fact-specific holdings into patent-specific “rules” without acknowledging fundamental legal principles, the Federal Circuit has created a substantial risk of uncertainty in the trial courts and in the patent system as a whole. The patent community would benefit from the law of patent damages going back to fundamental tort and evidentiary principles.

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