- Indirect Infringement Damages Limited To Extent Of Direct Infringement: Where sale of accused product constitutes contributory infringement, damages can be assessed only for those units that led to an actual direct infringement. Golden Blount (Fed. Cir. 02/15/06). Plaintiff is entitled to damages for infringement of a method claim for only “those devices that actually performed the patented method during the relevant infringement period.” Cardiac Pacemakers (Fed. Cir. 08/19/09).
- … Or Not (When Determining Reasonable Royalty): “We have never laid down any rigid requirement that damages in all circumstances be limited to specific instances of infringement proven with direct evidence. Such a strict requirement could create a hypothetical negotiation far-removed from what parties regularly do during real-world licensing negotiations.” But, “the damages award ought to be correlated, in some respect, to the extent the infringing method is used by consumers. This is so because this is what the parties to the hypothetical negotiation would have considered.” Lucent Tech. (Fed. Cir. 09/11/09) (rev’g lump-sum reasonable royalty award for lack of substantial evidence).
- TIPS:
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Need Infringement To Award Damages: Golden Blount (Fed. Cir. 2006) (“There can be no cognizable lost sale on which to base a damages award under the patent laws without an act of infringement to warrant it.”).