Commercial Success in Patent Litigation

BVResearch Pro
Training Event Transcripts
December 20, 2022
Richard F. Bero, CPA/ABV, CVA, CLP, CFF
Shane Brunner
economic damages & lost profits, case law analysis
intellectual property, litigation, patent infringement, economic damages & lost profits, patent


To obtain a United States patent, the claimed invention may not be obvious in view of prior art. Whether a claimed invention is obvious often arises during the examination of a patent application by the United States Patent & Trademark Office. After a patent issues, obviousness may again arise as a defense to infringement by an accused infringer in litigation or as a basis for invalidity by a petitioner in post-grant proceedings, such as Inter-Partes Review or Ex Parte Re-examination. When determining if a patent claim is obvious, four factors are considered: (1) the scope and content of the prior art; (2) differences between the prior art and the claims at issue; (3) the level of ordinary skill in the pertinent art; and (4) secondary considerations, including commercial success, whether the invention addresses long felt but unresolved needs, and failure of others, if any. This program focuses on the commercial success aspect of the fourth factor, and how expert analysis can help demonstrate commercial success or defeat a claim of commercial success.
Commercial Success in Patent Litigation
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