Lost Profits Damages Checklist

Summary

This checklist provides best practices and considerations for patent owners attempting to recover damages based on a successful infringement suit, on the basis of lost profits under 35 U.S.C. § 284. A patentee who competes with an accused infringer in the market for a patented product will invariably seek lost profits, rather than a reasonable royalty, for at least some of the infringing sales. Such damages are potentially greater than a reasonable royalty. A lost profits inquiry is quite fact-intensive and getting a handle on the full scope of the issues involved at an early stage is critical.