Using Consumer Surveys to Prove Patent Infringement Damages at Trial

Proving damages in patent infringement cases just keeps getting harder. The Federal Circuit’s decision in Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011), illustrates the increased scrutiny damage awards in patent infringement cases have received in the past few years. In Uniloc, the court explained that damage awards in patent infringement cases must be supported by sound economic theory and tied to the patented invention’s “footprint in the marketplace.” And, where a patent covers only one feature of an accused product, Federal Circuit decisions also require that a patent holder wishing to present evidence regarding the overall profitability of the accused product demonstrate that the patented feature creates consumer demand for the product or its components.