Damage calculations in situations involving infringing use of intellectual properties such as typically measure either the lost profits of the IP owner, or the profits unfairly retained by the infringing party as a result of the infringement.
The fundamental purpose of an economic damages remedy is to make the claimant whole for its legally recognized injuries or losses. In situations of IP infringement, either the IP owner has not achieved an amount of profits it would have achieved but-for the infringing action by the IP user, or the alleged infringer has achieved profits due to its infringement of the IP owner’s exclusive rights. Typically, a damages analyst will investigate both the amount by which financial performance of the IP owner has declined due to the alleged infringement, as well as the amount by which the IP user was unjustly enriched.