Damages I Patent Law 4.19.04 Relief Issuance Complaint filed in District Court Preliminary...
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Transcript of Damages I Patent Law 4.19.04 Relief Issuance Complaint filed in District Court Preliminary...
Relief
Issuance Complaint filed in District Court
Preliminaryinjunctionhearing
Damages assessed forthis period if marking
(or actual notice)
Prospective Effect
Final injunction
issues
Remedies: Injunctions
Preliminary Injunction -- 4 Factors:
1. Reasonable likelihood of success2. Irreparable harm3. Balance of hardships4. Impact on public interest
Permanent Injunction• Presumed
Remedies: Patent Damages § 284
• Marking/Notice (required for patented articles; not machines or processes) - §287
• Standard: adequate to compensate fully for injuries proximately caused by the infringement.
• Damage Measures:• no less than a reasonable royalty
• Lost Profits• Reasonable Royalty
• Treble Damages: Willful Infringement• Other Monetary Relief:
• Attorney Fees in exceptional cases• Prejudgment interest
Permanent Injunctions
• Routinely granted.
• Foster v. American Mach & Foundry Co. (CB: 1064)– Rare case.– Balancing the equities.
Damages
• Two measures:– Actual damages– Reasonable royalty
• Actual damages & the problem of proof– Panduit Corp. v. Stahlin Bros. Fibre Works, Inc.
– P. 1069
Damages
Two measures:Actual damages
Reasonable royalty
Actual damages & the problem of proof– Panduit Corp. v. Stahlin Bros. Fibre Works, Inc.
(CB:328-29)
Patent owner must prove:1. Demand2. Absence of substitute3. Capability4. Amount of profit
DamagesTwo approaches to substitution:
1. Patentable = unique, therefore, no substitutes.
2. Antitrust, substitution is a function of cross-elasticity of demand. Therefore, there will usually be substitutes.
The Fallback – Reasonable Royalties
• “Hypothetical Bargain” principle
• When? – Date infringement began
• Factors– Do not reward infringement !!– Available noninfringing substitutes?– Does infringer get a profit?
United States Patent 4,373,847 Hipp , et al. February 15, 1983 Releasable locking device
A releasable locking device is provided for securing a parked vehicle to an adjacent upright structure. The device includes a first means mounted on the upright structure and a second means mounted on the first means for vertical movement relative thereto between operative and inoperative mode positions. When in an operative mode, the second means is in a raised position and interlockingly engages a portion of the parked vehicle. A third means is provided which releasably retains the second means in an operative mode and prevents accidental movement of the second means from an operative mode position to a lower inoperative mode position. The first means includes guides for restricting movement of the second means to a substantially vertical path.
Inventors: Hipp; Steven J. (Milwaukee, WI); Hahn; Norbert (Cudahy, WI) Assignee: Rite-Hite Corporation (Cudahy, WI) Appl. No.: 260340Filed: May 4, 1981
Other damage theories
• Price erosion• Market share rule• Lost sales of related
but unpatented products
• Post-expiration sales
Not just lost sales, but
lower price—because infringer provides
price competition
Larry Solum, USD Law School
Other damage theories
• Price erosion• Market share rule• Lost sales of related
but unpatented products
• Post-expiration sales
Relative market share of patentee relative to
non-infringers
would remain the
same without the infringer.
Other damage theories
• Price erosion• Market share rule• Lost sales of related
but unpatented products
• Post-expiration sales
Components and other
related products which are normally sold with
the patented product.