Contemporary Issues in Patent Royalty Damages


Written by our friends at Kilpatrick Stockton, E. Danielle Thompson Williams and Leslie T. Grab, Ph.D..

TMI:  How Much Settlement Information is Too Much Settlement Information?

I. Introduction

“Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty.”[1]  Damages are a hotly contested issue in nearly every patent litigation.  Patentees have traditionally had three remedies available to compensate for patent infringement:  lost profits; an established royalty; or a reasonable royalty.  Each of the remedies considered unique information on which a patentee could rely in establishing a damages award.  When requesting a reasonable royalty, patentees also often relied on the entire market value rule as another tool to determine the amount of the damages award.  However, a recent string of cases has changed the methodologies for determining a reasonable royalty as well as the standard for using the entire market value rule.  These cases put both the district courts and patent litigants on notice that the standards for establishing damages have been tightened.  Patentees must now “carefully tie proof of damages to the claimed invention’s footprint in the marketplace.”[2]  These decisions have benefits and risks for both plaintiffs and defendants in litigation that include both settlement strategies as well as expert testimony.

II. Calculation Of Patent Damages

Of the three remedies available to patentees to compensate for infringement, the recent changes in the case law affect the determination of the amount of a reasonable royalty rather than lost profits or an established royalty.  In fact, the decisions may result in a reasonable royalty determination that more closely resembles the traditional established royalty analysis. 

Traditionally, a patentee may recover under an established royalty when the patentee has consistently licensed others to engage in conduct comparable to that of the defendant at a uniform royalty.  In these cases, the royalty is taken as established and indicates the terms on which a patentee would have licensed the defendant’s use of the invention.[1]  The standard for establishing the existence of a reasonable royalty is quite high and, as a result, many patentees fail to satisfy the requirements.[2]  To qualify as an established royalty, the royalty rate must meet five criteria:  (1) the royalty must have been paid prior to the infringement at issue; (2) the royalty must have been paid by a sufficient number of people; (3) the royalty must have been uniform; (4) the royalty must not have been set under threat of litigation or as settlement of litigation; and (5) the royalty must apply to a comparable set of rights or uses at issue in the litigation.[3]  In the context of an established royalty, the Supreme Court has rejected the consideration of licenses entered as a result of litigation.[4]

As such, if a patentee does not have an established licensing program that is outside of the context of litigation, it generally must rely on a reasonable royalty to set a measure for damages.  A reasonable royalty determination is the amount a party, wishing to manufacture or sell a patented article, would be willing to pay as a royalty.  The royalty amount assumes that the party would still be able to make a reasonable profit by selling the article in the open market.[5]  Generally, the determination of a reasonable royalty for accused patent infringement applies the well-established factors set forth in Georgia Pacific Corp. v. U.S. Plywood Corp.[6]  The fifteen factor Georgia Pacific analysis provides guidance as to what would happen at a hypothetical negotiation between the patentee and the accused infringer just before the infringement began.[7]  Evaluation of these factors generally requires a more intensive analysis than for an established royalty and the fact-finder is often aided by expert testimony.  Additionally, the determination of a reasonable royalty is generally much less precise than finding an established royalty.  Because reasonable royalty calculations are less precise than an established royalty, the differences between the plaintiff’s reasonable royalty and that of the defendant can be large. 

One of the factors included in the Georgia Pacific analysis considers royalties received by the patentee for licensing the patent-in-suit, which can provide some guidance, but as with established royalties, licenses negotiated in the context of litigation were not considered relevant to the determination of a reasonable royalty.[8]  Therefore, in the absence of an established licensing program, even one that would not satisfy the criteria for an established royalty, experts are left to look to outside sources for a reasonable royalty rate.   

Another factor that should be considered by the fact finder in determining a reasonable royalty can include the rates that may have been paid by the licensee for the use of other patents that are comparable to the patent-in-suit.  This factor may provide some guidance when the licensee has utilized other technology that is similar to that of the patent-in-suit from third parties.[9]  In the past, licenses previously taken by the licensee that may have included other elements, such as services or know-how, could also be considered in the reasonable royalty analysis.  These licenses, while not as probative, could still be used as a factor in determining a reasonable royalty for the patent at issue.  However, as discussed further below, recent decisions by the courts have called into question the relevance of “bundled” licenses in the determination of a reasonable royalty.[10]  

Finally, the royalty amount must be attributable to the patented elements of the product, rather than any non-patented elements.  Patentees often attempt to apply the entire market value rule to establish a more favorable damages award.  The entire market value rule permits patentees to recover damages based on the value of a patentee’s entire product, which may contain both patented and non-patented features.[11]  However, the entire market value rule may only be applied “where the patent-related feature is the basis for the customer demand.”[12]  In other words, the patented component must be “the basis for customer demand or substantially create the value of the component parts.”[13]  Recent decisions have altered this standard, making it more difficult for patentees to base the damages award on the entire price of the product when the patented invention is but a small portion of the product. 

III. Too Much Information

Settlement license agreements have traditionally been excluded from the determination of either an established or reasonable royalty.  The long-standing prohibition against the use of settlement license agreements stems from two broad categories: (1) evidentiary or policy grounds and (2) lack of probative value.

Courts that exclude licenses on the grounds of evidentiary or policy reasons often do so under Rule 408 of the Federal Rules of Evidence.  Many courts refer to the advisory committee’s notes on Rule 408, which states:

(1) The evidence is irrelevant, since the offer may me motivated by a desire for peace rather than from any concession of weakness of position.  The validity of this position will vary as the amount of the offer varies in relation to the size of the claim and may be influenced by other circumstances.  (2) A more consistently impressive ground is promotion of the public policy favoring the compromise and settlement of disputes.[1]

 Courts have also excluded settlement licenses as lacking probative value.  The United States Supreme Court explained this rationale in the nineteenth century case, Rude v. Westcott:

It is clear that a payment of any sum in a settlement of a claim for alleged infringement cannot be taken as a standard to measure the value of the improvements patented, in determining the damages sustained by the owners of the patent in other cases of infringement.  Many considerations other than the value of the improvements patented may include the payment in such cases.  The avoidance of the risk and expense of litigation will always be a potential motive for a settlement.[2] 

However, according to the interpretation of some district courts, the Federal Circuit has opened the door to the admissibility of settlement license agreements as probative evidence for the determination of a reasonable royalty in its decision in, Inc. v. Lansa, Inc.[3]   As such, some courts have allowed the use of settlement agreements as evidence of a reasonable royalty.  Other courts have even gone further to allow discovery related to the negotiations behind the settlement agreements.  These decisions represent a sea change in the law of patent damages and have repercussions for both patentees and accused infringers. 

A. ResQNet

ResQNet sued Lansa alleging infringement of patents related to screen recognition software that was used to facilitate terminal emulation.  The district court found that one of the patents was infringed and awarded $500 million in damages.  Lansa appealed arguing that the license agreements relied on by ResQNet’s expert were not comparable to the patent in suit.  In calculating a reasonable royalty, ResQNet’s expert relied on re-bundling licenses that covered unrelated software products and source code.  Some of the licenses included service agreements, such as training, maintenance and upgrades.  The Federal Circuit held that the re-bundled license had no relationship to the claimed invention or the patent in suit and that the patentee had used these licenses to arrive at an increased royalty rate.  The Federal Circuit noted that there were licenses that had been negotiated in the context of litigation that were related to the patented technology that were arguably more relevant than the licenses proffered by the patentee.[4]  The Federal Circuit overturned the damages award holding that the district court should not have relied on unrelated licenses to increase the reasonable royalty rate above rates that were more clearly linked to the economic demand for the patented technology.  However, it is important to note that the Court did not explicitly hold that the settlement licenses were admissible, but rather that, of the licenses in the record, the settlement licenses represented the most accurate value of the technology at issue.[5]  Despite the Court’s holding, ResQNet has been cited by district courts for the proposition that settlement licenses are admissible and have further allowed discovery on the underlying negotiations surrounding those licenses. 

B. ResQNet’s Progeny

1.  DataTreasury Corp. v. Wells Fargo & Co. et al.[6]

Judge Folsom in the Eastern District of Texas allowed the plaintiff to introduce the more than 30 settlement related license agreements at trial as evidence of both a reasonable royalty as well as evidence of non-obviousness.  Further, in ordering that the licenses were admissible, the Court allowed defendants further discovery regarding the negotiations that led to the settlement agreements. The plaintiff was seeking a lump sum payment based on a royalty amount multiplied by the base of allegedly infringing products.  Nearly all of the settlement agreements were lump sum payments and most included licenses for additional patents, other than the two patents-in-suit.  The Court allowed discovery by the defendants into the royalty base for each of the settlement agreements to allow a calculation of the effective royalty rate.  Further, after discovery, the Court excluded certain licenses as not probative since they were lump sum without indication of the royalty base and others as unduly prejudicial.[7]

2.  Tyco Healthcare Group L.P. v. E-Z-EM, Inc.[8] 

In Tyco, Judge Ward in the Eastern District of Texas also allowed the introduction of settlement related license agreements.  The Court, in considering ResQNet, held that “[a] prior related settlement agreement, where it exists, may be central to the fact-finder’s determination of damages using a hypothetical negotiations analysis.”[9]  The Court found that it must make findings that connect the technological and economic aspects of the previous licenses to the patent in suit.  Further, the Court held that ResQNet suggested that the underlying negotiations are relevant to the calculation of a reasonable royalty using the hypothetical negotiation model. 

3.  IP Innovation v. Red Hat[10]

In contrast to both Judge Folsom and Judge Ward, Judge Rader, sitting by designation as the trial judge in the Eastern District of Texas made no such definitive statements with respect to settlement license agreements.  The Court held that the third party licenses relied on to prove the reasonable royalty rate were too broad to support a royalty on the patented feature.  The Court found that the Plaintiff’s expert did not offer any evidence that the alleged industry agreements were comparable to the patents at issue in the litigation.[11]  Further, the Court noted that license agreements entered into outside the context of litigation were “appropriate as touchstones” for determining an appropriate royalty.  At least one other court in the Eastern District of Texas agrees with Judge Rader’s comments.

4.  Fenner Investments v. Hewlett-Packard[12]

Magistrate Judge Love, also in the Eastern District of Texas, held that settlement license agreements were not appropriate as evidence for a reasonable royalty.  The opinion of the Court was that the potential for prejudice and jury confusion substantially outweighed any probative value of the settlement license agreements.  Judge Love noted that parties enter into settlement agreements for a number of reasons other than simply for the value of the patented invention.  By allowing the settlement license agreements into evidence, the Court held that the agreements would invite mini-trials regarding the similarities and differences between the facts of the settled case and the current case.

5.  Software Tree, LLC v. Red Hat, Inc.[13]

In another recent decision, Judge Love of the Eastern District of Texas continued his firm stance against the admissibility of settlement license agreements in the Software Tree case.  Citing to established precedent, the Court declined to “upset this district’s case law regarding discoverability of settlement negotiations” absent clear precedent otherwise. 

IV.   Carefully Defining the Market

Patentees have used the entire market value rule extensively to establish a higher royalty rate in the calculation of a damages award.  Two cases in which Lucent sued Gateway and Dell have served to tighten the standard for application of the entire market value rule in cases where the patented feature is a small part of the overall product.  In Cornell University v. Hewlett-Packard Co.,[14] Judge Rader further affirmed that a reasonable royalty must be tied to the patented feature and the demand for the patented feature rather than the entire price of a product containing the patented feature. 

A.   Lucent and Cornell – Apportionment

1.  Lucent Technologies, Inc. v. Gateway, Inc.[15]

In 2007, Lucent sued Gateway and Dell for infringement of two patents directed to MP3 audio compression technology.  The jury awarded Lucent $1.52 billion as a reasonable royalty for infringement of the patents.  Lucent presented a damages model based on a reasonable royalty for the patent; the model presented was a 0.5% royalty rate applied to the average price of a personal computer over the relevant years. The defendants appealed and argued that there was insufficient evidence to support the application of the entire market value rule, on which Lucent predicated the royalty base, on the cost of the entire computer.  The technology at issue related to MP3 audio compression and not to the entire MP3 technology.  The feature of the computer that utilized the technology was the audio player, a very small, and arguably unimportant feature of an entire personal computer.  The district court, citing Rite-Hite, found that Lucent had failed to establish a link between the MP3 audio compression technology and the demand for a personal computer.  The Court further emphasized that the patents did not even cover MP3 technology, but rather a feature of MP3 technology.

2.   Lucent Technologies, Inc. v. Gateway, Inc.[16]

Lucent once again sued Gateway and Dell for patent infringement.  This time the patented technology was a date-picker feature that was present in Microsoft programs.  Lucent alleged that the date-picker feature infringed the method claims of a Lucent patent that covered entering information on a computer screen without a keyboard.  Microsoft intervened on behalf of Gateway and Dell as the date-picker feature was part of the Microsoft Outlook program.  At trial, Lucent sought a reasonable royalty as the measure of damages.  Lucent requested a running royalty of 8 percent on the gross sales revenue of all of the accused products, totaling $562 million in damages.  Microsoft argued that the damages should be limited to a lump-sum royalty payment of $6.5 million.  The jury found infringement and awarded Lucent a $358 million lump sum.  The Federal Circuit affirmed the finding of infringement, but vacated the damages award on the ground that there was insufficient evidentiary support for the damages award.  The Court found no evidence that the date-picker feature was the source of the demand for Microsoft Outlook.  Further, Lucent’s expert had improperly applied the entire market value rule to the sale of infringing computers loaded with the accused software rather than the software itself.  When precluded from using the computer as the royalty base, Lucent’s expert then used the price of the Outlook software but inflated the royalty rate to arrive at the same outcome.  The Court rejected this analysis as well.

3.  Cornell University v. Hewlett-Packard Co.[17]

Cornell University sued Hewlett-Packard based on a patent that covered a method for instruction issuance that was a small component within a computer processor.  Cornell’s expert used the CPU brick as the royalty base although the patented technology was but a single component of the processor, which was, in turn, a small component of the CPU brick.  The $23 billion royalty base was derived from the revenues that Hewlett-Packard would have obtained if it had sold each of the infringing processors in conjunction with a CPU brick.  The Court held that any market for the CPU brick was imaginary and that Cornell had failed to offer any market evidence that the patented invention drove the demand for the CPU bricks.  Furthermore, any upward adjustment of the unchallenged royalty rate to adjust for the downward adjustment of the royalty base would have violated the maximum recovery rule.  Essentially, Cornell was seeking to obtain damages based on a technology beyond the scope of the patented invention. 

B.   Proper Application of Entire Market Value

However, as was demonstrated in the i4i case, when the patentee can show that the patented feature is a significant component of the accused product and that the feature is responsible for some of the customer demand of the product, the entire market value rule will still apply. 

1.  i4i Ltd. P’ship v. Microsoft Corp.[18]

i4i sued Microsoft alleging infringement of its patent related to XML functionality within Microsoft Word.  The jury found infringement and awarded i4i $200 million in damages.  Microsoft appealed the award arguing that the damages award was unfounded.  i4i’s expert had calculated a royalty rate of $98 per infringing copy of Microsoft Word (2.1 million).  The rate was based on the selling price of a third party independent XML editor, XMetaL that was used by Microsoft before it developed its own XML editor.  The stand alone third party product retailed for $499.  i4i’s expert calculated the licensing fee by multiplying the price of XMetaL ($499) by Microsoft’s profit margin (76.6%), based on his assumption that any licensing fee would be a fraction of the profits.  The expert then applied the 25-percent rule to this number, which assumes the inventor will keep 25% of the profits from any infringing sales. This resulted in a baseline royalty rate of $96, which was then adjusted to $98 based on the application of the Georgia Pacific factors.  The Federal Circuit affirmed the damages noting that Microsoft’s objections were really directed at the conclusion drawn by i4i’s expert rather than his methodology.  The Court held that the use of the XMetaL product was appropriate as it represented a true market example of what customers who desired XML functionality would have paid for the product.  Further, the royalty base of 2.1 million copies of Microsoft Word was an appropriate base as the XML feature did drive the sales of copies of Microsoft Word that had the XML feature. 

V. Conclusions and Lessons Learned

A. Settlement Licenses

In the context of the potential admissibility of settlement licenses, it is critical that patent litigants understand when these licenses will have an impact during the litigation.  There may be considerable debate regarding the admissibility of the settlement license agreements, regardless of whether they have previously been discoverable, during the pre-trial briefing.  Many motions in limine have been directed at excluding the licenses from the trial.  Another timing factor to consider is whether, if the court allows the settlement licenses to come into evidence, more discovery will be needed by the parties to prepare to address these licenses.  If discovery is ordered and new information is uncovered, the litigants may further wish to supplement expert reports based on this new information.  These issues can exponentially increase the costs of the litigation on the eve of trial and introduce unwanted distractions during a time when the parties are focused on preparing for trial. 

Further, the decision by the court as to whether the settlement licenses are admissible can have a tremendous impact on trial strategy.  For a patentee, if the settlement agreements are found to be admissible, the patentee may focus on the fact that some number of other defendants have already settled with the patentee, underscoring the validity of the patents.  On the other hand, if the settlement royalty rates are low and the requested damages are high, the patentee may face credibility problems in explaining to the jury why this defendant should pay more than those that came before it.  On the side of the accused infringer, admission of the settlement licenses can sometimes significantly weaken any non-infringement or invalidity defenses, particularly if the patentee has entered into a significant number of settlement agreements.  On the other hand, if the settlement amounts are low, the accused infringer may come out with a lower royalty rate than was previously requested by the patentee.

Some points to consider for both the patentee and the accused infringer:  

1.  Patentee

The admission of settlement licenses can be undesirable if the effective royalty rate is low.  A low settlement royalty rate may drive down the effective royalty rate that is acceptable to the patentee for infringement.  Further, settlement agreements with a lower royalty rate than has been requested by the patentee during litigation may undermine the credibility of the patentee’s requested rate.  A patentee or expert that opines to a much higher royalty rate during litigation than has previously been acceptable may not be well received by a jury.  Any damage to the patentee’s credibility with respect to damages may carry over and adversely affect the patentee’s liability case. 

In some cases, the admissibility of settlement licenses are desirable if the patentee chooses to use the licenses to establish before a jury that the patents are valid.  If the patentee has settled with many defendants, it may be able to convince the jury that the patents must be valid and infringed and shift the focus to how much money the patentee should get for the infringement at issue.

Since the decision regarding admissibility may not be made until close to trial, patentees should be mindful of conduct and statements made in settlement negotiations, as these negotiations may become evidence later.

2.  Accused Infringer

As indicated above, if settlement licenses are admitted and reflect a low royalty rate, alleged infringers may benefit by a finding of a lower reasonable royalty rate.  Conversely, if the settlement rates are high, the alleged infringer has a higher hurdle to convince the fact finder as to why it should pay a lower rate. 

Similarly, if the patentee has settled with many defendants prior to trial, the accused infringer may find itself fighting a losing battle with respect to non-infringement and/or invalidity.  It would be increasingly difficult to convince a fact finder that, despite other similarly situated defendants’ settlements, the patents at issue are actually invalid and the patentee should not recover.  In many cases, the accused infringer may find itself trying a damages case as opposed to non-infringement or invalidity. 

3.  Experts

Experts for both the patentee and the accused infringer should beware of relying on non-comparable industry license agreements to establish a royalty.  Similarly, due to the uncertainly of the admissibility of settlement agreements, experts may need to hedge on the use of these agreements or be prepared to supplement their opinions once the court decides on the admissibility of the licenses.

B.   Entire Market Value

The standard for applying the entire market value rule has been tightened by the courts.  As such, both litigants and experts must be much more diligent in establishing the connection between the market and the patented technology when determining the relevant royalty base.  If the patented feature is a small component of the whole product then apportioning the value between the price of a product on the market and the patented feature becomes increasingly important.  Parties should look to the i4i case as a benchmark for properly supporting a royalty base when it is based on a third-party product.

You can hear more from Danielle Thompson Williams on the issue of patent royalty damages at the upcoming PLI Patent Litigation 2010 program in Atlanta, Georgia on November 8 – 9th.   If you can’t make that program, no worries just click on the Patent Seminars tab on the top of the page where you’ll find a complete list of all the upcoming dates for the Patent Litigation program including a live webcast.

[1] Christopher B. Mueller & Laird C. Kirkpatrick, Federal Rules of Evidence :  With Advisory Committee Notes and Legislative History 90 (Aspen 2005).

[2] Rude, 130 U.S. at 164.  Although the royalty at issue in Rude v. Westcott was an established royalty, courts have often cited the above-referenced language to support the prohibition of the use of settlement licenses in the context of a reasonable royalty.  See, e.g., Spreadsheet Automation Corp. v. Microsoft Corp., 587 F. Supp. 2d 794 (E.D. Tex. 2007).

[3] 594 F.3d 860 (Fed. Cir. 2010)

[4] ResQNet, 594 F.3d at 872 (In rejecting the re-bundled licenses, the ResQNet court stated “[t]his court observes as well that the most reliable license in this record arose out of litigation.”) 

[5] Id.

[6] 2010 WL 903259 (E.D. Tex. Mar. 4, 2010)

[7] DataTreasury, Corp.  v. Wells Fargo & Co., 2010 WL 1640900 (E.D. Tex. Mar. 16, 2010).

[8] 2010 WL 774848 (E.D. Tex. Mar. 2, 2010)

[9] Id. at *2.

[10] 2010 WL 986620 (E.D. Tex. Mar. 2, 2010)

[11] The plaintiff’s expert had ignored several comparable license agreements from the 1990’s stating that they were too old.  The Court noted that a more credible approach would have been to consider the agreements and simply account for the passage of time since the licenses were entered into, rather than to reject them out of hand.

[12] 2010 WL 1727916 (E.D. Tex, Apr. 28, 2010)

[13] No. 6:09cv097 (E.D. Tex. June 24, 2010).

[14] 690 F. Supp. 2d 279 (N.D.N.Y. 2009)

[15] 509 F. Supp. 2d 912 (S.D. Cal. 2007)

[16] 508 F.3d 1301 (Fed. Cir. 2009)

[17] 609 F. Supp. 2d 279 (N.D.N.Y. 2009)

[18] 589 F.3d 1286 (Fed. Cir. 2009)

[1] Monsanto Co. v. McFarling, 488 F.3d 973 (Fed. Cir. 2007).

[2] Mobil Oil Corp. v. Amoco Chems. Corp., 915 F. Supp. 1333 (D. Del. 1995).

[3] See Rude v. Westcott, 130 U.S. 152, 164-65 (1889); Mobil Oil, 915 F. Supp. at 1342. 

[4] Rude, 130 U.S. at 165.

[5] Gene Quinn, Patent Infringement Damages, IP Watchdog, Oct. 19, 2008,

[6] 318 F. Supp. 1116 (S.D.N.Y. 1970).

[7] Id.  The Georgia Pacific analysis includes fifteen factors that are to be considered by a fact finder when determining the amount of a reasonable royalty.  These factors include: (1) royalties received by the patentee for prior licensing of the patent in suit; (2) rates paid by the licensee for the use of other patents similar to the patent in suit; (3) the nature and scope of the license; is it exclusive or non-exclusive or restricted in scope; (4) the licensor’s established policy of maintaining its patent monopoly by not licensing others to use the patent; (5) the commercial relationship between the licensor and licensee, such as, whether they are competitors or inventor and promoter; (6) the effect of the patented element in promoting the sales of other products of the licensee and the value of the invention to the licensor; (7) the duration of the patent term and the term of the license; (8) the established profitability of the product made under the patent; (9) the utility and advantages of the patented product over old modes or devices; (10) the nature of the patented invention and the benefits to those who have used it; (11) the extent to which the infringer has made use of the invention; (12) the portion of the profit or selling price that is customary in the business; (13) the portion of the realizable profit that can be attributed to the patented elements as distinguished from the non-patented elements; (14) the opinion testimony of qualified experts; and (15) the amount that the licensor and a licensee would have agreed upon at the time the infringement began if both had reasonably and voluntarily trying to reach an agreement.

[8] Rude, 130 U.S. at 165.  See also Spreadsheet Automation Corp. v. Microsoft Corp., 587 F. Supp. 2d 794 (E.D. Tex. 2007).

[9] See i4i Ltd. P’ship v. Microsoft Corp., 589 F.3d 1286 (Fed. Cir. 2009) (court holding expert’s use of third party product that defendant had previously utilized within its larger product was proper in determining a reasonable royalty rate for the accused product.)

[10] ResQNet, 594 F.3d 860.

[11] Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538 (Fed. Cir. 1995).

[12] Innoex Serv. v. W.H. Munzprufer Dietmar Trenner GmbH, 408 F.3d 1374, 1379-80 (Fed. Cir. 2005).

[13] Rite-Hite Corp., 56 F.3d at 1549.


[1] 35 U.S.C. § 284 (2006).

[2], Inc. v. Lansa, Inc., 594 F.3d 860 (Fed. Cir. 2009).

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