Non-Infringing Alternatives

The availability of substitute technologies may weigh on a reasonable royalty to the extent that it impacts an infringer’s willingness to pay for a hypothetical license.

The utility and advantages of the patent property over the old modes or devices, if any, that had been used for working out similar results.

Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y., 1970).

Non-infringing alternatives must be available at the time of first infringement.

[A]n accused alternative product offered by a third party could not be considered as a non-infringing alternative before the patentee and the third party voluntarily settled their litigation [citing Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1222 (Fed.Cir. 1995)].

AstraZeneca AB v. Apotex Corp., 782 F. 3d 1324, 1340 (Fed. Cir. 2015).

Non-infringing alternatives may not limit a reasonable royalty when the cost of implementing a non-infringing alternative is not “adequate to compensate” the patentee.

[A]n infringer may be liable for damages, including reasonable royalty damages, that exceed the amount that the infringer could have paid to avoid infringement.

Mars, Inc. v. Coin Acceptors, Inc., 527 F.3d 1359, 1373 (Fed. Cir. 2008).

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