Alternative Damages Theories in Patent Cases

The most common type of damages award in a patent case is a straightforward royalty based on sales of the infringing product. But when a company determines that potential damages under that formula are not enough to warrant a lawsuit, it should not necessarily put the issue to rest. McAndrews, Held & Malloy attorney Christopher M. Scharff notes that the Court of Appeals for the Federal Circuit and even the patent law itself allow for other options, as he considers “use-based” and “indirect value-based” damages theories and when it might make sense to invoke them. Defendants as well as plaintiffs in infringement cases will find this discussion useful.