LOST PROFITS
- Profits lost by a patentee when an infringer makes sales that, but for the infringement, would have been made by the patentee.
- In order to satisfy the “but for” requirement, the patentee must establish:
- it had the ability or capacity to make the sales it claims to have lost; and
- there was no noninfringing alternative, such that the subject sales of the defendant were possible only through infringement.
'Losing Lost Profits'
Grain Processing Corp. v. American Maize-Products Co., 185 F.3d 1341 (CAFC 1999): the CAFC affirmed a lower court ruling that a patent owner could not recover lost profits if noninfringing substitutes would have been available at the time of infringement.