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Advanced Patents Attack Outline

This is a sample of our (approximately) 5 page long Advanced Patents Attack notes, which we sell as part of the Advanced Patent Law Outlines collection, a A package written at University Of Virginia School Of Law in 2017 that contains (approximately) 37 pages of notes across 3 different documents.

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Advanced Patents Attack Revision

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Advanced Patent Law: concepts Professor John Duffy - Spring 2017 Remedies
 Injunctions o Permanent Injunctions: eBay (auction): four factor test
 (1) Irreparable harm: patents unique (not fungible), so more harm
 (2) Inadequate remedies at law: e.g., difficult to prove damages
 (3) Balance of hardships: lock-in effect (company becomes dependent on using patented tech.), price erosion
 (4) Public interest: universities vs. trolls, standard essential patents, drugs for public
 DUFFY: must show first two factors, must show balance doesn't tip in favor of ∆, and must prove public interest won't be disserved
 Concurrences: focus on nature of patents (Roberts) and NPEs (Kennedy) o Preliminary Injunctions: Amazon (1-click) (CAFC) four factor test
 (1) Reasonable likelihood of success on the merits
 (2) Irreparable harm if injunction is not granted (combo of eBay 1 and 2)
 (3) Balance of hardships
 (4) Public interest
 Damages o NOTE: some courts bifurcate; exclusive licensees have standing o Burden: on Plaintiff to prove damages, but don't make too high standard otherwise irreparable harm and could get injunction o Reasonable Royalty
 DUFFY: difficult because each patent is unique
 DUFFY: can either use (1) hypothetical negotiation or (2) apportionment
 (1) Hypothetical Negotiation (Lucent (CAFC) - date picker): must engage in hypothetical negotiation, assume validity/infringement, look to comparable licenses (or to superiority)
 Verdicts reviewed for substantial evidence
 Cannot use Nash Bargaining Solution (split difference) (VernetX (EDTex))
 Look to Georgia Pacific factors for relevant information: e.g., many vs. few, lump sum vs. reasonable royalty, etc.
 (2) Apportionment: start with sales, subtract off value of other contributions.
 Entire Market Value Rule (VernetX (EDTex) - secure facetime connection): must begin calculation with smallest salable unit unless (1) the patented feature drives demand allowing use of entire market value, or (2) license evidence shows that value of patent feature based on entire market value
 Cannot use Nash Bargaining Solution (split difference) (VernetX (EDTex)) o Lost Profits
 RULE: practicing entities can get lost profits they would have earned but for the infringement
 DUFFY: often won't fully compensate for the lost monopoly price
 Rite-Hite (loading dock) (CAFC): (1) lost profits must be reasonably foreseeable, but the sales lost need not be from a product that implements the patented feature, and (2) must show patented feature drives market to get entire market value (e.g., of other products sold separately like dock levelers - Rite-Hite), or when the item cannot be sold without the infringing component (State Industries (CAFC), "tag along sales")
 Noninfringing Substitutes (Grain Processing (CAFC)): patentee can recover lost profits based on the amount infringer gained by using the patented feature
 Market Share Rule: (State Industries (CAFC)) calculate the lost profits based on the lost share of the market base due to infringement: LP = (hypothetical market share loss) x (D's sales) x (profits per sale) o Attorney's Fees (Octane Fitness): attorney's fees are awarded at district court's discretion for exceptional circumstances (not strict CAFC rule), reviewed for abuse of discretion. Can be shown by, e.g., objective bad faith/baselessness, or material inappropriate conduct

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