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ARTICLE · 14 NOVEMBER 2011

A Few Key Points To Remember When Using A Survey In A Patent Damages Case

Vinson & Elkins LLP
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Unlike trademark infringement cases where surveys have been commonly used for years, surveys in the damages phase of patent infringement cases are rarely seen. The playing field, however, has now changed.

United StatesIntellectual Property
David Weaver
David Weaver
Kristen Foster
Kristen Foster
Avelyn Ross
Avelyn Ross

Originally published in BNA's Patent, Trademark & Copyright Journal, November 2011.

Unlike trademark infringement cases where surveys have been commonly used for years, surveys in the damages phase of patent infringement cases are rarely seen. The playing field, however, has now changed.

Recent decisions by the U.S. Court of Appeals for the Federal Circuit reemphasized the principle that damages evidence in patent infringement cases must be based on a ''firm scientific or technical grounding'' and must relate to the invention's ''footprint in the marketplace.'' Lucent Technologies Inc. v. Gateway Inc. 580 F.3d. 1301, 92 USPQ2d 1555 (Fed. Cir. 2009) (78 PTCJ 583, 9/18/09); ResQNet.com Inc. v. Lansa Inc. 594 F.3d 860, 869, 93 USPQ2d 1553 (Fed. Cir. 2010) (79 PTCJ 422, 2/12/10); and Uniloc USA Inc. v. Microsoft Corp., 632 F.3d 1292, 1315, 98 USPQ2d 1203(Fed. Cir. 2011)(81 PTCJ 275, 1/7/11). These three rulings brought on a demand for the real-world data that can

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