In Managing Intellectual Property, IP litigation partner Matt Rizzolo discussed how litigators can minimize patent damages.
Matt notes that litigators may rely on patent pools as examples of comparable agreements. Patent pools tend to outline lower rates than other agreements because the pool operators must try and get broad acceptance. However, he said that pools can sometimes be deemed as non-comparable because they are not one-on-one agreements.
Matt explained that defendants can also reduce damages by pointing to a plaintiff’s failure to adhere to marking requirements. Patent owners are supposed to mark their patented products. Owners may not have the right to recover pre-suit infringement damages if they or their licensees fail to do this.
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