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When Lost Profits Are Lost: 2025

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The document discusses the challenges faced by intellectual property (IP) holding companies in recovering damages from patent infringement litigation. It outlines two types of IP holding companies: those that exist primarily to monetize patents and those that are part of a larger business structure aimed at tax savings. The author explains how the separation of IP from business operations complicates the determination of reasonable royalty rates and lost profits, emphasizing that IP holding companies often lack manufacturing capabilities, which hinders their ability to claim lost profits. The document also contrasts the advantages of holding patents directly within parent corporations, which may have better prospects for recovering damages.

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What is an example of a lost profit?

An example of lost profits constituting direct damages is the wrongful termination of a performance contract (e.g., a manufacturing contract). The non-breaching party has a claim for the net profit from the contract had full performance occurred.

What is the remedy for lost profits?

In commercial litigation matters involving contract disputes, claims of fraud, negligence, intellectual property infringement and other tort actions, lost profits may be an appropriate measure of damages to make the injured party financially whole provided the plaintiff can a) establish that the defendants actions

What is the concept of loss of profit?

The concept of loss of profit is used in a broad sense, defined as any difference between the actual profits generated by an undertaking and the profits it would have generated in the absence of an infringement.

What is the profit and loss theory?

If the selling price is greater than the cost price, then the difference between the selling price and cost price is called profit. If the selling price is less than the cost price, then the difference between the cost price and the selling price is called loss.

Can you recover lost profits?

To recover lost profits, you have to prove them with reasonable certainty. The reasonable certainty standard is not a bright-line rule. Whether lost profits have been proven with reasonable certainty depends on the unique facts of each case.

What is the lost profit method?

Calculating lost profits is essentially performing a but for estimate of how the business would have performed had there been no incident. The actual results of the period that the business was affected are subtracted from the but for results.

What is the lost profit theory?

Lost profits are economic damages caused by a disruption in business operations. The damages can be the result of a variety of factors, some of which include patent infringement, breach of contract, liability caused by an accident, negligent acts or physical damage to business property or equipment.

Are lost profits actual damages?

The vast majority of courts agree that lost profits may be either direct or consequential damages, depending on the circumstances surrounding the particular contract and parties. See Biotronik A.G. v. Conor Medsystems Ireland, Ltd., 22 N.Y. 3d 799, 805-06, 11 N.E.

When Lost Profits Are Lost: 2025

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