ARTICLE: The Book of Wisdom: How to Bring a Metaphorical Flourish Into the Realm of Economic Reality by Adopting a Market Reconstruction Requirement in the Calculation of a Reasonable Royalty Skip over navigation
LexisNexis® Browse Law Reviews and Treatises
Skip over navigation
Sign in with your lexis.com® ID to access the full text of this article.
-OR-
Order the full text of this article if you do not have a lexis.com® ID.
 
Price: 
US $22.00 (+ tax)
 
 

Copyright (c) 2010 Patent and Trademark Office Society, All Rights Reserved
Journal of the Patent and Trademark Office Society

ARTICLE: The Book of Wisdom: How to Bring a Metaphorical Flourish Into the Realm of Economic Reality by Adopting a Market Reconstruction Requirement in the Calculation of a Reasonable Royalty

August 19, 2010

92 J. Pat. & Trademark Off. Soc'y 156

Author

D. Christopher Holly 1

Excerpt

Introduction
Congress did not intend to aid a patentee in solving his problem of proving the quantum of his damages by enabling him to substitute the quantum of the infringer's profits...the two concepts are basically different; they cannot be treated as equivalent. 2
 
The United States patent statute provides that upon a finding of infringement:
[T]he court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court. 3

 
Courts have interpreted the statute to grant patent holder's the right to be awarded damages based upon two distinct measures. The first compensatory damage award is measured by ascertainment of a plaintiff's lost profits, 4 suffered as a result of the infringing activity. If a plaintiff is unable to prove lost profits attendant with the infringement, then the court is authorized to award at least a reasonable royalty 5 to compensate the patent holder. The reasonably royalty is the statutorily created lower threshold of permitted damages. 6 Further, Congress amended the patent statute 7 in 1946 to discard a once-common damage measure--disgorgement of an infringer's profits--which had been utilized by the courts for decades.

It is undisputed that district courts have wide discretion in the methodology used to calculate a reasonable royalty. 8 The two most common approaches are the "analytical" and "willing licensor-licensee ...
 
 
If you are interested in obtaining a lexis.com® ID and Password, please contact us at 1-(800)-227-4908 or visit us at http://www.lexisnexis.com/.
Search Documents
 
eg., Environmental Insurance Coverage Under the Comprehensive General Liability Policy
 
 
 
 

Lexis® Web - The only search engine that delivers free web content specifically from legal sites validated by LexisNexis® attorney editors and includes tools for faster research and more relevant results.

 
LexisNexis Store
Research Now - Go to lexis.com
Connect the Dots - Free 1 hour webcast
Share. Network. Discover. - Go to LexisNexis Communities