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Scholars Discuss IP Boundaries

Publication Date: 
February 16, 2009
Patent, Trademark & Copyright Journal

Professor Mark A. Lemely is quoted in Trademark & Copyright Journal in an article about a conference on intellectual property "fair use":

From his upcoming article "Distinguishing Lost Profits From Reasonable Royalties," Stanford Law School Professor Mark A. Lemley discussed the blurring lines between lost profits and reasonable royalties in patent damages. He asserted that the Federal Circuit frequently awards reasonable royalty damages to those who are not able to prove entitlement to lost profits. Because of this pattern, Lemley said we are now in a world where patent owners would rather have reasonable royalties than lost profits. He said that courts, in assessing damages, should draw a sharp division between the injury suffered by patentees who compete with infringers and those who do not. To avoid overcompensating patent owners in reasonable royalty cases, he said, patentees who participate in the market should be entitled to the best estimate of lost profits.