This presentation will review the legal and economic issues that practitioners must confront and resolve when pursuing and responding to claims for lost profits patent damages in the presence of non-infringing substitutes. Our experienced panel will discuss the role of non-infringing substitutes in the famous Panduit test that is commonly used to determine whether an award of lost profits is warranted. They will also review more recent decisions in which lost profits damages have been awarded despite the presence of non-infringing substitutes, and explore how these cases have affected application of the Panduit test.
Other topics of discussion include:
The problem of how to measure lost profits damages when non-infringing substitutes are present
The basics of the market share rule for allocating infringing sales between patented and non-patented products, and how the rule applies (or does not apply) in more complex market settings, such as those involving claims of price erosion.
How to recognize market settings in which the market share rule is likely to yield inappropriate results.
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