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Patent Infringement: Providing Customer Demand...or a Lack Thereof

By Jacob Jacoby, Ph.D.1

An expert witness in hundreds of litigated matters, Jacob Jacoby’s treatise Trademark Surveys, commissioned by the ABA, will be published by Thomson/West in 2013. His invited presentations on litigation surveys include those given at INTA, AIPLA, PLI, several bar associations and at workshops for U.S. District Court judges and magistrates.

With case law on patent infringement having evolved to the point where patentees now must prove that the patent-related feature is the basis for customer demand, this article has two objectives. The first is to discuss the pros and cons associated with several approaches for adducing such proof and, in the process, describe a simulation procedure used in three recent cases to achieve out-of-court settlements. The second objective is to illustrate how defendants in such matters can be proactive in proving a lack of customer demand.

While the history of consumer surveys being proffered as evidence in trademark litigation dates back more than 50 years, the introduction of consumer surveys in patent litigation is a considerably more recent phenomenon. And whereas more than 1,000 consumer surveys have been introduced in hundreds of trademark cases, examination of case law suggests perhaps 20 to 30 consumer surveys have thus far been introduced in patent litigation. This is bo...

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