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les Nouvelles - December 2008


Overview Of Intellectual Property Damages In The United States

Brent Bersin

Navigant Consulting, Inc., Director, Houston, TX, USA

Lance Mormon

Navigant Consulting, Inc., Managing Consultant, Houston, TX, USA

The enforcement of intellectual property (“IP”) rights through litigation has continued to rise along with jury awards for economic damages, particularly in patent infringement matters. Indeed, a cottage industry of patent litigation has developed in the Easter District of Texas involving plaintiffs and defendants coast-to-coast. As a consequence, many law firms are adding IP expertise to their practices, and an increasing number of trial attorneys represent clients in IP infringement lawsuits.

This paper is intended as a general introduction to the types of damages available for consideration by counsel in IP litigation. Numerous other papers and treatises are available which more comprehensively discuss various aspects of this broad subject matter. The four primary types of IP rights are (i) patents, (ii) copyrights, (iii) trademarks, and (iv) trade secrets. These four types of IP rights can be broadly characterized as patent and non-patent (copyrights, trademarks, and trade secrets). To that end, this paper discusses IP damages in two sections: (i) patent damages and (ii) non-patent IP damages.

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