Patents

Reasonable Royalty Damages For Patent Infringement

Damages for Patent Infringement If you have a patent that you believe is being infringed, you may have questions about recoverable damages. You may be asking what are the damages for patent infringement, and how to prove damages. Or if you are being accused of infringement, you may be asking what is the value of this patent. Our experienced patent litigation attorneys will explain. For assistance, please don’t hesitate to send us a message or call (832) 485-3580 today. The Federal Circuits opinion in Power Integrations, Inc. v. Fairchild Semiconductor International, Inc., decided July 3, 2018, provides a good analysis of damages for patent infringement. The Statute 35 U.S.C. Section 284 provides that the court shall award the claimant damages adequate to compensate for the patent infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer. Appointment Power Integrations is another case that considers apportionment between the infringing and non-infringing features of the accused product, and application of the entire market value rule. The Federal Circuit stated As a substantive matter, it is the value of what was taken that measures a reasonable royalty and it is only the patented technology that is taken from the owner, so the value to be determined is only the value that the infringing features contribute to the value of an accused product. When the infringing device has multiple components, the Court stated: [w]e have articulated that, where multi-component products are accused of infringement, the royalty base should not be larger than the smallest salable unit embodying the patented invention. Yet, this may not end the inquiry in deciding the appropriate royalty base. In Power Integrations, the Court stated that even if the smallest salable unit is used, the patent owner must still establish what portion is attributable to the patented technology when the smallest salable unit itself contains several non-infringing features. Entire Market Value Rule In Power Integrations, the Court described the entire market value rule (EMVR) as a demanding alternative to our general rule of apportionment. The EMVR allows patent owners to recover damages based on the value of the entire apparatus containing multiple features when the patented feature constitutes the basis for the consumer demand. However, there are strict requirements that limit the EMVR: If the product has other valuable features that also contribute to driving consumer demand patented or unpatented- then the damages for the patent infringement must be apportioned to reflect only the value of the patented feature. This is so whenever the claimed feature does not define the entirety of the commercial product. In some circumstances, for example, where the other features are simply generic and/or conventional and hence of little distinguishing character, it may be appropriate to use the entire value of the product because the patented feature accounts for almost all of the value of the product as a whole. Although this sounds helpful to patent owners, the Federal Circuit cautioned that the EMVR is appropriate only when the patented feature is the sole driver of customer demand or substantially creates the value of the component parts. If the accused infringer provides evidence that its product has other valuable features, the patent owner has the burden to establish those features are not relevant to consumer choice those other features did not influence purchasing decisions. The Court’s opinion provides a good summary of the evidence (and argument) on these issues and is certainly worth reading to consider how a potential case will measure up. Contact a Patent Litigation Attorney If you have a patent that you believe is being infringed or if someone is alleging that you owe damages for patent infringement, please contact our patent litigation lawyers by filling out our short form or calling (832) 485-3580 today.

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Articles

The Complete Guide: Types of Patent Infringement

Having a patent gives you the right to prevent others from making, using, or selling your patented invention. If a company or individual does one of these things, the patent owner may have a cause of action for a patent infringement case.  If you believe someone has infringed on your patent or if you have been accused of patent infringement, reach out to an experienced patent litigation lawyer as soon as possible. Your lawyer can evaluate the claim and provide you with legal advice. The Polasek Law Firm can assist you. Polasek Law Firm has been advising clients on patent infringement issues for more than 25 years.  Please give the firm a call at (832) 485-3580 or send an online message – The initial consultation is at no charge. We’ll review the different types of patent infringement with examples. What Is a Patent? The United States Patent and Trademark Office (USPTO) grants patents to inventions that are new, useful, non-obvious, and not excluded from patent eligibility under federal law.  A utility patent typically lasts for 20 years from the filing of the application.  What Are the Different Types of Patent Infringement? There are several types of patent infringement. Infringement can be direct or indirect, and it can be literal or under the doctrine of equivalents. Direct Infringement Direct infringement occurs when someone directly violates your patent rights. That is, they make, use, sell, offer to sell, or import your patented invention. Indirect Infringement Indirect infringement occurs when someone provides support for a directly infringing activity. Indirect infringement can be through inducement or contributory infringement. Induced Infringement Induced infringement occurs when a party with knowledge of the patent encourages or influences someone else to commit acts of infringement. For example, the person might provide someone with instructions for creating the patented invention. Contributory Infringement A person commits contributory infringement when they supply components of a patented invention knowing that the components will be used to infringe a patent. For contributory infringement to exist, the component must have no substantial non-infringing uses. For example, if someone sold a product that would be useful only if combined into a patented product, that might be considered contributory infringement. Literal Infringement Literal infringement occurs when a device or process literally meets every limitation in a patent claim. If even one component is different, it cannot be considered literal infringement. Infringement Under the Doctrine of Equivalents If someone has not literally infringed a patent, there still may be infringement under the doctrine of equivalents. Equivalent infringement may occur when the corresponding pieces of the accused product or process are not substantially different from the corresponding limitation in the claim of the patent. What Is The Effect Of Willful Patent Infringement? In the case of willful infringement, a court can triple the amount of damages that it would normally award to a patent holder. Infringement is not literally willful if an infringer had a good faith belief that it was not violating the patent or that the patent was invalid. In that case, they may still be liable for infringement.  What Types of Remedies Are Available for Patent Infringement? Remedies for patent infringement may include injunctive relief and damages. An injunction orders someone to stop their infringing actions.  Money damages are typically awarded for these types of patent infringement under the patent laws, a patent owner is entitled to at least a reasonable royalty.  Additionally, in certain instances, a patent owner may be able to recover lost profits from an infringer. How Can The Polasek Law Firm Help You? John (Ted) Polasek has spent the past 25 years working on all types of patent infringement cases. He has experience with both enforcing patents and defending accused infringers. Ted believes in providing one-on-one personalized service for each client. Contact The Polasek Law Firm today through the online form, or give the firm a call at (832) 485-3580 to schedule a free consultation. Polasek Law Firm is ready to help with your patent infringement case.

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Patents

Patent Infringement: What to Do and How to Respond If You’ve Been Accused

There were a total of approximately 3.1 million unexpired patents in the United States in 2020. With so many patents covering inventions of all kinds, well-meaning companies may find that they have accidentally and allegedly infringed upon someone’s patent rights. As with other types of intellectual property, patent infringement is serious business. You may have wondered what to do if accused of patent infringement. What Is Patent Infringement? A patent gives its owners certain exclusionary rights. Title 35 of the United States Code, Section 271(a) provides that patent infringement occurs when someone makes, uses, sells, offers to sell a patented invention within the United States, or imports a patented invention into the United States. Whether the accused person knows about the patent is irrelevant to a finding of infringement; however, it may affect the amount of damages awarded. If the infringement is willful the court may enhance the monetary award up to triple the damages awarded. Additionally, Section 271 provides other bases for infringement that may be applicable to your particular situation. Your patent attorney will be able to evaluate infringement claims being made under Section 271. What to Do If Accused of Patent Infringement The  first notice that you may be infringing someone’s patent may be a cease-and-desist letter from the patent owner’s attorney. This letter will likely identify the patent(s) you are allegedly infringing and the basis for the infringement charge.  If you receive one of these letters, take it seriously. Consult a patent attorney without delay. However, a patent owner is not required to send a cease and desist letter, so your first notice that you are being accused of patent infringement may be service of the Complaint, which is the paper filed in Federal Court that initiates a lawsuit.  Again, your first step should be to consult a patent attorney that is knowledgeable in patent infringement litigation. In either event, below are additional steps to undertake: Hire a Patent Attorney Even if you have an in-house attorney or engineering or scientific staff, it is unlikely they will be familiar with the nuances of patent law. A patent attorney will be, and they can assess the situation and give guidance on how to proceed.  Gather Information Your attorney will likely ask you to start collecting information about the allegedly infringing product, and the patents listed in the demand letter or complaint. All this information is crucial to analyzing the strength of the infringement claim. Review the Patent Claims with Your Attorney Every patent contains claims that set forth the invention. Each claim is made up of several limitations that describe “the invention.”  These claims are the “metes and bounds” of the patent owner’s exclusionary rights. In consultation with your attorney, review the claims in the patents. In general, infringement occurs only if your product or process meets all limitations of a particular independent patent claim.  Your patent lawyer will guide you through the process of construing the claims and applying the claims to your accused product or process.  A patent attorney’s expertise is crucial during this step. Develop a Plan to Handle the Case Once you have reviewed the situation, it’s time to come up with a plan to defend yourself. Your patent attorney will help you build a defensive strategy. Hire a Patent Infringement Attorney If your company is accused of patent infringement, The Polasek Law Firm can help you develop a plan to defend your company. TPLF’s mission is to provide efficient, economically viable solutions to the issues facing clients. Polasek Law Firm offers years of patent litigation experience at affordable hourly rates and flexible fee arrangements to meet your needs. Contact the firm today to schedule a free consultation.

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Patents

Patent Infringement Damages Overview

As an inventor, owning a patent is one of the most rewarding things you can achieve.  Successfully obtaining a patent on your invention requires significant dedication, time, and money. Unfortunately, however, individuals and entities do not always respect the protections provided by a patent. In fact, there were more than 225,000 patent cases filed in District Court in 2017 alone.  If another party steals your invention and uses it without your permission, they have committed patent infringement. When this happens, not only do they take advantage of your hard work, but they can also cause actual harm to you.  If someone infringes your patent, you may have a right to recover patent infringement damages. Of course, damages for patent infringement cases can vary widely from case to case depending on various factors. But if you have questions about your potential patent infringement damages and how you can maximize your claim, contact an experienced patent litigation attorney today.  The Polasek Law Firm focuses exclusively on the practice of intellectual property law. Give the firm a call today to discuss your case and see what patent infringement damages you may be able to recover.  Types of Damages in Patent Infringement Cases There are two primary types of damages in patent infringement cases: reasonable royalties and lost profits. A judge may award other types of damages in certain situations. However, reasonable royalties and lost profits are the most common. Reasonable Royalties A “reasonable royalty” is one type of patent infringement damages calculation. Essentially, a reasonable royalty is the fair market value associated with the use of your patent by the patent infringer. As you might expect, determining the fair market value of a particular invention might seem speculative and difficult to determine. Fortunately, there are a few different methods of calculating reasonable royalty damages in patent infringement cases.  An experienced patent infringement attorney can help you understand the various calculation methods and determine which one will allow you to maximize the amount of damages in your particular case. Lost Profits A “lost profits” claim for damages, on the other hand, does not rely on the market value of the use of your patent. Rather, lost profits are calculated by determining the amount of money that the patent owner would have made if not for the infringement.  Determining lost profits for purposes of a patent infringement damages calculation can also be complicated. This is often because the patent owner must be able to show a causal relationship between the infringed patent and the lost profits.  Damages in a patent infringement case can be difficult to prove. However, that doesn’t mean they are not worth pursuing. In fact, a court may even permit expert testimony to assist in determining a patent infringement damages calculation.  A knowledgeable patent litigation lawyer can help you gather the evidence and information you need to help prove your patent infringement damages case. Contact a Patent Infringement Attorney Today Your patent carries important legal protections for your invention. When another party disrespects those protections, you have a right to take action.  Polasek Law Firm takes your intellectual property seriously. With over 25 years of experience handling intellectual property law, TPLF has the resources and experience necessary to protect and enforce your rights.  For more information on your potential patent infringement damages, contact Polasek Law Firm today and see what the firm can do for you. 

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Articles

What Does a Patent Lawyer Do?

If you have an idea that requires a patent, you should consider consulting with a patent lawyer.  There are many things a patent lawyer can do, such as advise you on the process for obtaining your patent and help you protect it against infringement. What Is a Patent? Patents can be used to protect any number of ideas and inventions, including: A formula; A process or method; A tool or product; An engineered plant; or A machine. To be patentable, the invention must be original and nonobvious. Patents last from 15 to 20 years, depending on the type of patent. Do You Need a Lawyer to File a Patent Application? You can file a patent application on your own, but it is always a good idea to have a lawyer help you. When you write a patent application, you need to make sure your idea meets all the qualifications for a patent and that you describe it clearly enough to adequately protect it. For example, you need to: Determine which type of patent application to file and whether you need multiple patent applications; Determine whether you need to file a provisional patent application while you prepare your regular application; Explain how the invention works; Demonstrate that the invention is new;  Explain how the invention will be used and why it is useful; and Explain each part of the invention in detail. If you don’t prepare your application correctly, the patent office may reject it. Or even worse, the patent may not adequately protect your idea. Even if you want to do some of the initial draftings on your own, you should have an experienced patent lawyer review your application before you submit it. They can point out anything that might be missing or need more explanation. What Does a Patent Lawyer Do? A patent lawyer can help you with anything related to your patent, including obtaining the patent, licensing your invention, and protecting your patent from infringement. Obtaining a Patent As discussed above, a patent lawyer can draft or review your patent application and help you get your patent approved. Having a lawyer?s assistance as you apply for your patent can help speed along the process and ensure that your patent is adequately protected. Licensing In many cases, the person who creates an invention is not necessarily the person in the best position to manufacture, market, or sell it. Often, you will need to license your patent to actually earn money from it. There are many potential benefits of licensing your patent including: Getting your product to market more quickly; Limiting your liability; Not having to devote your own resources to manufacturing the product; Potentially having a more established name behind your product; and The ability to more easily enter foreign markets. There are many options when it comes to licensing your patent. A patent attorney can advise you on the type of license that makes the most sense for your patent. They can also help you negotiate the license with prospective licensees so you can get more favorable terms. Some things you may discuss with your attorney include: Whether you want to grant someone an exclusive license or license the patent to multiple parties; Whether your licensee will have the right to grant sublicenses to others and under what terms; How you will be paid; How long the license will last; and What actions the licensee needs to take to maintain the license. Patent licenses are complex contracts. They include many detailed provisions that help define and protect your rights and those of the licensee.  You do not want to sign a license agreement without consulting with an attorney. You deserve appropriate compensation for your ingenuity and creativity. An attorney can help protect your interests and see that the agreement appropriately values your patent. Infringement A patent gives you the right to prevent others from using, making, or selling your invention. Nevertheless, there are always those who try to profit from the hard work of other people. If someone else infringes on your patent, it can drastically affect your ability to make money from your invention. However, you have the right to take legal action against patent infringers. If you believe someone has infringed on your patent, you should talk to a patent attorney right away. The longer the infringement continues, the more you stand to lose. Your attorney will likely start by sending a letter to the other party to insist that they stop infringing on your patent. If they refuse, then your attorney will file a complaint in court. They will also likely request a preliminary injunction that will require the other person to stop what they are doing until the matter can be resolved.  Because time is of the essence and there may be a lot of money at stake, it is important to have an experienced patent litigator help you with this process. What Can a Patent Attorney at Polasek Law Do For You? John (Ted) Polasek has been practicing patent law for 25 years. His practice focuses on licensing patents and litigating patent infringement cases. Ted is committed to providing personalized service for each of his clients. This includes flexible fee arrangements that take the needs of individual clients into account. Ted offers a free consultation to discuss your patent-related questions. Contact our firm to schedule your consultation today.

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