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).