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When Is The Hypothetical Negotiation For Patent Damages?

Tiomkin Law Offices of Elliott Tiomkin > Legal News  > When Is The Hypothetical Negotiation For Patent Damages?

When Is The Hypothetical Negotiation For Patent Damages?

Law360 (June 19, 2020, 6:09 PM EDT) — A well-established approach to estimating patent damages is a reasonable royalty based on a hypothetical negotiation between the patent owner and the infringer. This construct envisions a hypothetical negotiation at the time of first infringement, with both parties accepting that the patent was valid and infringed, willing to enter a license for the patent, and having full knowledge of the relevant facts and circumstances.

While each of these assumptions can have a meaningful impact on the reasonable royalty outcome, properly identifying the date of the hypothetical negotiation and the specific parties who would have negotiated is often vital to this process….

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