Patent Law

Uncompromising Damages

By Gary Odom and Jordan Kuhn

The Coalition for Patent Fairness and Financial Services Roundtable last week wrote Senators Leahy, Hatch, and Specter, tweaking a smidge their insistence on damages apportionment as a sure means to clog the courts, maximize litigation cost, and eviscerate patent enforcement. Modification to current language in the Senate bill for damages apportionment is copasetic, as long as "the law makes clear the inventor must prove the inclusion of the invention in a product is what predominantly causes consumers to purchase the product." In other words, a plaintiff would have to prove that the product is purchased for its infringing value.

Hal Wegner shows spunk in one of his patented commentary compendiums: "BSA Damages "Compromise": Patent Reform on the Rocks" -

Critical to success of patent reform under the model of Leahy S. 1145 is compromise on several key issues, and particularly the elimination of the most controversial damages apportionment provision. The Business Software Alliance (BSA) has now thrown what must be considered the ultimate bomb to blow up any realistic chance of compromise through its March 5th letter to the United States Senate with its "compromise" proposal for damages apportionment.

The BSA's new statutory proposal requires "an analysis to ensure that a reasonable royalty is determined on the basis of the portion of the economic value of the infringing product ... that is properly attributable to the infringer's use of the elements of the invention that were novel and nonobvious ... and shall permit the jury to hear only evidence relating to that economic value."

Full post as published by The Patent Prospector on March 09, 2008 (boomark / email).