Judges on the U.S. Court of Appeals for the Federal Circuit have vigorously sought, over the past two years, to further define the evidence necessary for a plaintiff to prove damages consisting of “a reasonable royalty for the use made of the invention by [a patent] infringer” under 35 USC §284. Such a reasonable royalty can be a “running” rate, applied as a percentage of sales or a fixed amount per unit, or a “lump-sum” payment, and “derives from a hypothetical negotiation between the patentee and the infringer when the infringement began.”1
A list of factors relevant to the calculus appears in Georgia-Pacific Corp. v. United States Plywood Corp., and includes the technology involved, benefits obtained, comparable licenses, the competitive relationship between the parties, the extent of the infringer’s use, and numerous others.2 Four recent cases have been prominent in refining certain aspects of this area of law.
Four Important Decisions
