Winning the Patent Damages Case ― A Litigator's Guide to Economic Models and Other Damage Strategies

Winning the Patent Damages Case, by Richard F. Cauley, is a guide for patent litigators and in-house counsel who are either considering an action for patent infringement or who are facing the spectre of a lengthy, expensive litigation. It offers readers an analytical framework for determining the likely damages award in a patent case, which is critical to the decision of whether to settle the case and for how much. It provides valuable information on how to structure the patent case from the outset and assists accused infringers in how to prepare a "shadow" damages case that may result in a much more reasonable damages award in the event of a loss. The book also provides practical suggestions on how to select and work with a damages expert.

The second edition discusses the Federal Circuit's decision in Lucent v. Gateway on the entire market rule and damages allocation, as well as subsequent decisions which have employed its reasoning. This decision marks a sea change in awarding damages where the patented technology is a small component or feature in an infringing product. The discussion centers on the implications of this decision on future damages awards for such patents, how this decision is likely to be used by the courts in the future, and how litigants need to change the way they manage their damages cases to account for this change in the law.

Other new developments include whether plaintiffs can use licenses obtained in litigation to prove an "established royalty" under the Georgia-Pacific factor No.1; and courts awarding ongoing royalties instead of imposing injunctions.

The Late Richard F. Cauley is a partner with the Newport Beach, California law firm of Wang, Hartmann, Gibbs & Cauley. Previously, he was a partner with McDermott Will & Emery, LLP, based in Palo Alto, California. He is an experienced trial attorney specializing in complex intellectual property and antitrust matters with particular expertise in matters requiring economic and financial analysis.