Calculating damages and legal fees in the USA

This article is a start at documenting how awards/damages are calculated in the USA. The general principal is that the infringer will have to pay either a "reasonable royalty" or the lost profits.

Types of awards

Possible types of damages include:

• 35 USC §284 (damages) [1]
• 35 USC §285 (award of attorneys fees) [2]
• Fed.R.Civ.P. 11 or 28 USC 1927

Can you help? need some case law for the above laws

Damages in the USA for foreign infringements

A blog about the Alcatel-Lucent v. Microsoft (2008, USA) case mentioned that "According to reports, about half of the damage award is based on foreign sales under US patent law section 271(f)."

See also another case: Microsoft v. AT&T (2006, USA).

Related pages on ESP Wiki

• The Patent Reform Act - which may reduce the amount of damages available
• 2008 State of Software Patents - a study of the total cost of litigation in the USA
• Wilful infringement - can lead to a large increase in the award
• Costs of the patent system to governments
• Cost of getting patents
• Costs are astronomically disproportionate for SMEs and individuals
• Court cases and litigation - here you'll find articles which may mention how much damages were paid in various cases
• Costs

External links

• Federal Circuit Affirms High Standard for Attorney Fees under 35 U.S.C. 285, 14 Aug 2009, Patently-O
• Reasonable Billing Rates, 29 Oct 2008, Patently-O
• PriceWaterhouseCoopers: 2009-patent-litigation-study.pdf - contains lists of statistics of damages awarded in the USA (see also: 2009 patent litigation study)
• Federal Circuit Again Demands More Substance from Damages Experts, Feb 2010, Patently-O
• Uniloc v. Microsoft: The CAFC Rejects the 25 Percent Rule, 4 Jan 2011, Patently-O - regarding "reasonable royalties"
• Judge Posner: No Damages Despite Infringement, 12 June 2012, Patently-O
• The most important Apple-Samsung decision left for Judge Koh: running royalties, not past damages, 19 Dec 2012, 'Florian Mueller

Media Queue v. Netflix

• Attorney Fees and Equal Treatment for Plaintiffs and Defendants
• Netflix Tries to Fix One Part of the Patent System