A patent is an exclusive right granted to anyone who invents any “new, useful, and non-obvious process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof, and claims that right in a formal patent application”. Examples are biological patents, business method patents, chemical patents and software patents. Patent infringement occurs whenever someone has made, used, sold, offered to sell, or imported patented technology or its equivalent during the term of the patent and within the country that issued the patent. In this case the patent owner is negatively affected and may seek appropriate compensation.
An expert witness calculates the damages to compensate the plaintiff for the infringement. Such damages may be based on a reasonable royalty, lost profits or disgorgement of profits. The court may increase the damages up to three times the amount found or assessed. Patent cases now make up a significant number of the largest jury awards in the United States, as juries have increasingly awarded large sums for patent infringement. For example, in Polaroid Corp. v. Eastman Kodak Co. the damage award was nearly one billion dollars.
A patent damage expert must be familiar with the proper consideration of the Georgia Pacific factors and the Panduit test to determine whether profits have been lost as a result of the infringement and for the appropriateness of any award of reasonable royalties. For this, the patent damage expert needs both the ability to manage complex data and the experience to interpret it.
Fulcrum Inquiry performs damages analyses in patent, trademark and copyright (intellectual property) disputes. For additional information, see www.fulcrum.com.
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