Polaroid Corp. v. Eastman Kodak Co. - Oppedahl Patent Law Firm LLC
Polaroid Corp. v. Eastman Kodak Co. - Oppedahl Patent Law Firm LLC
Polaroid Corp. v. Eastman Kodak Co. - Oppedahl Patent Law Firm LLC
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Intellectual Property Library ISSN 1526-8535<br />
conventional photography was not acceptable substitute for instant photography.<br />
3. Monetary - Damages - <strong>Patent</strong>s - Lost profits (§ 510.0507.05)<br />
<strong>Patent</strong> owner seeking to recover lost profits must, even in two-seller market, show that it<br />
had marketing capability to make its sales combined with infringer's sales, through proof<br />
of factors such as adequate distribution system and sales personnel.<br />
4. Monetary - Damages - <strong>Patent</strong>s - Lost profits (§ 510.0507.05)<br />
Determination, for purposes of calculating lost profits, of demand in two-seller instant<br />
photography market requires careful examination of each party's actual marketing<br />
capabilities, since demand for instant cameras is highly susceptible to marketing<br />
influences; thus, demand for instant camera products, absent infringer's entry into market,<br />
cannot simply be said to be total sales actually made by both parties, since such approach<br />
fails to take into account reasons why consumers purchase instant cameras, and thus<br />
patent owner cannot recover lost profits on any sales to which infringer brought<br />
something unique and critical.<br />
5. Monetary - Damages - <strong>Patent</strong>s - Lost profits (§ 510.0507.05)<br />
Demand for instant photography products is subject to whim of consumers who may be<br />
influenced by brand names, and thus award of lost profits to owner of infringed instant<br />
photography patents must include consideration of consumer loyalty to infringer's brand<br />
name, and must determine whether such loyalty overcomes otherwise reasonable<br />
inference that infringer's cameras were purchased because of patented features owned by<br />
plaintiff.<br />
6. Monetary - Damages - <strong>Patent</strong>s - Lost profits (§ 510.0507.05)<br />
Award of lost profits to owner of infringed instant photography patents should not be<br />
reduced in order to account for effect of combined advertising produced by patent owner<br />
and its infringer/competitor, in view of parties' failure to create reasonable analytical tool<br />
for considering dual-advertising phenomenon, since in such case burden of uncertainty<br />
must fall on infringer.<br />
7. Monetary - Damages - <strong>Patent</strong>s - Lost profits (§ 510.0507.05)<br />
<strong><strong>Co</strong>rp</strong>orate owner of instant photography patents, which has failed to show that<br />
opportunity to make infringer's sales existed at any time other than when those sales<br />
actually occurred, must, in order to recover lost profits, demonstrate steps it conceivably<br />
could have taken to meet increased demand, including time-consuming capital<br />
investment; corporation should show not only its theoretical technical and physical<br />
potential but also its forecasting and decisionmaking skills, thereby establishing what it,<br />
<strong>Co</strong>pyright 2003, The Bureau of National Affairs, Inc. Reproduction or redistribution, in<br />
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as permitted by the BNA <strong>Co</strong>pyright Policy. http://www.bna.com/corp/index.html#V<br />
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