Calculating damages in IP litigation – An infringer’s profits may be recoverable

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Abstract: To protect victims of intellectual property (IP) infringement, federal law provides several alternative measures of damages. While a plaintiff generally is entitled to recover lost profits attributable to the infringement (or, at minimum, a reasonable royalty), these lost profits can be difficult to measure or prove. In such cases, the plaintiff may be able to recover the infringer’s profits as a substitute. This article discusses the circumstances under which a plaintiff may use this remedy, and explains how valuation experts can assist — especially if involved early in the litigation process.