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Patent Infringement Damages

In a patent infringement representation, one of the most important consultations between client and the patent infringement attorney is how to establish a damage model. The minimum damage available to the patent infringement plaintiff who prevails is a reasonable royalty. In the words of the patent statute, a patentee is entitled to "damages adequeate to compensate for the infringement, but in no event less than a reasonable royalty." 35 U.S.C. § 284. A reasonable royalty can be calculated from an established royalty, the infringer's profit projections for infringing sales, or a hypothetical negotiation between the patentee and infringer based on the factors in Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970). Lucent Techs. v. Gateway, Inc., 580 F.3d 1301, 1324 (Fed. Cir. 2009); Minks v. Polaris Indus., 546 F.3d 1364, 1372 (Fed. Cir. 2008). The hypothetical negotiation "attempts to ascertain the royalty upon which the parties would have agreed had they successfully negotiated an agreement just before infringement began," and "necessarily involves an element of approximation and uncertainty." Lucent, 580 F.3d at 1324-25 (citation omitted). Patent owners pursuing infringers must work closely with a patent infringement lawyer to construct a reasonable royalty damage model that satisfies the standards pronounced by the Federal Circuit Court of Appeals.

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