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Federal Circuit Clarifies Entire Market Value Rule

Determining patent infringement damages is complicated and often borders on the metaphysical.  Under U.S. law, a patent holder is entitled to damages adequate to compensate for the infringement, but in no event less than a “reasonable royalty.”  In some cases, patent holders can establish damages through lost profits.  However, when that is not possible or…

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Defending the Patent Case – The America Invents Act’s Advice of Counsel Provision

A key decision for many accused infringers is whether to rely on an opinion of counsel to rebut a claim of willful infringement.  A finding of willful infringement opens the door to the assessment of enhanced damages which can be as much as three times the actual damages. At one time, the law imposed a…

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Are We Kidding Ourselves With Patent Jury Trials? Lessons from Apple v. Samsung

When I talk to lawyers who do not practice patent law, they often speak of the complexity of patent cases in terms of the scientific or technological issues involved.  What many of them fail to understand is that quite apart from the technology, the law itself is very complex.  Lawyers and judges often have difficulty…

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Can I Make My Patented Product?—The Negative Monopoly Provided by Patents

  One of the most frequently misunderstood concepts in patent law is that it is a negative monopoly.  That means a patent provides a right to exclude other people from making, using, selling, offering to sell or importing what the patent claims.  However, that right to exclude does not confer a right to practice the…

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