Edgar: How Patent Damages Lost Their Way
A large portion of modern patent damages awards rely on methods that cannot be reconciled with an historical understanding of U.S. patent law, according to Shook Staff Attorney Craig Edgar. Edgar published a guest post on patent damages under 35 U.S.C. § 284 for Krause on Patents, a Substack of former U.S. Patent and Trademark Office Solicitor Tom Krause.
In the guest post, “A Brief History of 35 U.S.C. § 284—How Patent Damages Lost Their Way,” Edgar discusses the history of the 1952 Patent Act, noting that it continues the same processes used under the Patent Act of 1870 to determine damages: equity is allowed, but only for instances in which the patentee is not adequately compensated by legal damages. Over time, Edgar asserts, courts began applying the framework in Georgia-Pacific Corp. v. U.S. Plywood Corp. in nearly every patent case, which allowed evidence regarding the revenues and profits associated with the accused products.
“What had historically been equitable profit apportionment became the dominant method of calculating legal damages,” he says.
Read the article at Krause on Patents >>
In the guest post, “A Brief History of 35 U.S.C. § 284—How Patent Damages Lost Their Way,” Edgar discusses the history of the 1952 Patent Act, noting that it continues the same processes used under the Patent Act of 1870 to determine damages: equity is allowed, but only for instances in which the patentee is not adequately compensated by legal damages. Over time, Edgar asserts, courts began applying the framework in Georgia-Pacific Corp. v. U.S. Plywood Corp. in nearly every patent case, which allowed evidence regarding the revenues and profits associated with the accused products.
“What had historically been equitable profit apportionment became the dominant method of calculating legal damages,” he says.
Read the article at Krause on Patents >>
