Service Contracts for Infringing Activity May Increase Royalty Rate

The court denied defendant's motion for summary judgment that plaintiff was not entitled to reasonable royalty damages relating to service contracts associated with the accused activities because the service contracts were not a “use made of the invention” as required by 35 U.S.C. § 284. "Plaintiff's expert relied upon the service contract to increase the royalty rate and not to increase the royalty base. . . . [A]s the service contracts are not factored into the royalty base, the Defendants' . . . argument is without merit.

Inventio AG v. Thyssenkrupp Elevator Americas Corporation, et al, 1-08-cv-00874 (DED December 13, 2013, Order) (Andrews, J.)