Monday, April 27, 2009

Award of Lost Profits Does Not Require Affirmative Evidence as to Each Lost Sale

In denying defendant's motion for judgment as a matter of law, the court rejected defendant's argument that plaintiff did not meet the Panduit test for lost profits. "[Defendant] asserts that [plaintiff] was required to put forth affirmative evidence as to each sale, including the identity of each customer. The law does not require such precision, however. To be entitled to lost profits damages, the patent owner 'need not negate all possibilities that a purchaser might have bought a different product or might have foregone the purchase altogether.' The relevant standard is whether the patent owner demonstrates a 'reasonable probability that the sale would have been made but for the infringement.' "

3M Innovative Properties Co. v. Tomar Electronics, Inc., 0-05-cv-00756 (MND April 23, 2009, Memorandum Opinion & Order)

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