San Francisco Intellectual Property Law Blog

Assessing damages in any type of legal case can be a tricky proposition. Often the amount sought tries to encompass not only actual damages, but projected losses. In a personal injury case, the physical evidence can go a long way toward proving the loss. But damages in patent law can be harder to quantify.

Federal patent law clearly states that when infringement of a patent is determined, the claimant is entitled to "damages adequate to compensate for the infringement, but in no event less than a reasonable royalty." The issue then becomes, how do you determine adequate compensation? A loss of profits can be difficult to prove making the royalty option more common. But then, what constitutes a reasonable royalty?

Obtaining a patent is one thing. Protecting the rights after assignment of a patent is another. Each are separate activities. The process in the first instance is patent prosecution. The functions associated with the second focus on defending a patent against infringement and fall under litigation, as do those associated with challenging the validity of a patent in the first place.

The array of steps involved in those processes and the different venues available for patent enforcement make for a complex maze, safe navigation of which depends on help of experienced legal pilots. In this post, our goal is to provide readers some insight into the different routes that can arise in the patent enforcement landscape.

One aspect of inter partes review (IPR) that has been a source of major contention is that it is an administrative judicial process that operates separately from the normal processes of the U.S. legal system. But, as we noted in an earlier post, the U.S. Supreme Court has ruled it doesn't violate the Constitution.

Another element of IPR that some find disconcerting is that the law allows any person who does not own a patent to petition the U.S. Patent Trial and Appeal Board (PTAB) to initiate an action. That means that any entity, even one with no actual standing, can seek to invalidate an existing patent. But, based on the outcome of one recent challenge, it's clear that lack of standing may limit the right of appeal to federal court at times.

The rock band Boston has been around for decades. Over those years, the band has racked up a lot of name recognition. And every musician who has ever played with the group has likely sought to capitalize in some way or another on that association.

Intellectual property rights held in the form of copyrights, trademarks and otherwise can be leveraged to how affiliations are claimed and communicated, however. And that is something that is common to all businesses, whether the IP is associated with arts, ecology, biosciences, robotics, or any technology-related industry.