Determining Appropriate Damages for Patent Infringement: An Alternative Approach

Abstract

Determining the quantum of damages that should be afforded to an applicant when patent infringement has occurred is problematic for a number of reasons. Incorporeal works are difficult to value, and consequently certain categories of intellectual property present real challenges for the courts. This paper contends that citation information may be particularly helpful in relation to patents for a number of reasons. Citation information may afford useful insights into the level of industry uptake and the amount of subsequent innovation made possible by the patent. This insight may be particularly beneficial in situations where the courts are considering awarding additional damages. While the courts have not considered patent citation information thus far, the paper presents a number of patent citation-related metrics that may assist with the determination of patent damages.