Let’s talk about a part of patent litigation that frequently gets ignored. Too often, both clients and their attorneys focus 90 percent of their time, analysis and writings on whether a defendant is liable, as opposed to how much the defendant may be forced to pay. Yet, if the defendant has little exposure, arguably that’s just as important and determinative in practical terms as no liability. When damages are discussed, we generally hear about the massive damage awards that juries have handed down (such as the three awards exceeding $1 billion in 2012). But, again, you’d be hard-pressed to find a good, practical discussion of the opposite: when the damages would be so low, when injunctive relief would be so inconsequential, even if granted, that that consideration alone should dictate a defendant’s strategy and concern. Yet, given the fact that the average patent infringement case may cost over $2 million in legal fees through trial, there’s considerable play in what constitutes a “low” damage award.

It’s not that outside counsel are unaware of the possibility. However, their failure to raise the issue on some appropriate occasions is not indicative of an insidious plan to keep the billing machine churning. Simply put, even many patent litigators tend to ignore damage and other remedies issues at the beginning of the case. Well, “ignore” may be too strong. Let’s just say it probably does not get the full attention it sometimes deserves.

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