Practice Area · Contingency
Patent
Patent litigation is among the most expensive litigation there is, and the economics are unforgiving. We take patent cases selectively, and only where the numbers work.
How patent damages are measured
Patent damages take one of two forms: the patent owner’s lost profits, or a reasonable royalty. By statute, a successful patent owner recovers “damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer.” A reasonable royalty is the floor; lost profits, where they can be proven, can be far higher.
Why a reasonable royalty often isn’t enough
A royalty is a percentage of the infringer’s relevant sales. If the defendant hasn’t made substantial sales of the accused product, there’s little to take a percentage of — and little reason to bring the case.
Why lost profits are hard
Lost profits are harder still. The patent owner has to prove it would have made the very sales the infringer captured. Where several competitors sell in the market, that’s nearly impossible — those customers might have gone to any of them. Lost profits become realistic mainly in a two-supplier market: when the patent owner and the infringer are essentially the only sellers, so the infringer’s sales would likely have been the owner’s.
What the product has to be
We also look closely at what the defendant actually sells. The strongest cases involve an accused product that is, in substance, what the patent claims. Where the patented invention is only one component of a larger product, the defendant can argue — and a jury can agree — that even large sales support only a small royalty, because the patent covers a small part of the whole. Ideally, the accused product embodies the patented invention almost entirely, rather than merely including a patented feature.
Bottom line
We look for an infringer with significant sales of a product that is substantially the patented invention. Without that, a patent case usually isn’t worth bringing.
What a case looks like
A well-funded competitor sells, in volume, a product that is essentially your patented invention — and either you’re the only other seller, or its sales are large enough that even a reasonable royalty runs into the millions.
Illustrative scenario, not an actual case.
As with every matter we take on contingency, we look for clear liability, at least $5 million in damages, and a defendant who can pay.
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