Gathering evidence for higher damages in patent litigation complaints.

Recently, in some of the patent litigation complaints, we observed that the attorneys are using citation data as an indication that a company was well aware of the patent and continued to use the patented tech. Now, the companies listed by BOS also come under similar logic. In fact, a stronger logic. As it indicates a list of companies that filed patent applications similar to your patent and your patent was used by the examiner to provide 102/103 rejections to these companies’ patents applications. So, if overlap is confirmed with company (indicated by BOS), such arguments can be used for getting higher damages or faster conversion of licensing deals.

Example – We were developing infringement contention charts for one of our clients (a US patent attorney) against (a big name in cloud services). During this engagement, we indicated that USXXXX659B2 was used to provide multiple 102/103 rejections to certain patent applications filed by company X. This info was used by our client in the complaint document to argue that Company X was already aware of the 659 patent, they continued to use the patented tech in their products wilfully and should be liable for higher damages.