tag:blogger.com,1999:blog-5202549570150301909.post936987235940019101..comments2024-03-15T00:21:23.406-07:00Comments on Comparative Patent Remedies : Damages for Infringement Without Use or Sale?Thomas Cotterhttp://www.blogger.com/profile/07145440504421320263noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-5202549570150301909.post-25505593739843817992020-02-24T13:56:08.385-08:002020-02-24T13:56:08.385-08:00It seems to me that by eliminating disgorgement as...It seems to me that by eliminating disgorgement as a remedy, and focusing instead on the reasonable royalty, the Patent Act chose a mostly ex ante approach. The patentee doesn't reap the windfall of the infringer's success by getting profits, but the infringer likewise does not get to escape substantial damages based on its own failure. The infringer did make use of the patented invention, and may have failed to make a product for any number of reasons (poor execution, flawed business strategy, even bad luck, and so on). And as you suggest, even if the use of the invention did not lead to a commercial product because of some sort of technical inadequacy, sometimes knowing what not to do (as you suggest) can be incredibly commercially valuable - that's why trade secret law protects negative know-how. Granted, the prevalence of reasonable royalty measures based on a running royalty is in tension with what I just said - which makes me wonder if a true ex ante approach should base the running royalty on a number of anticipated sales, not actual ones. Anonymoushttps://www.blogger.com/profile/15728668678719920365noreply@blogger.com