Amicus Brief: Profits Should Be Evidence of a Patent's Commercial Success

Abstract

The Court should allow profits to be admissible evidence of an invention’s commercial success. The prospect of profits motivates firms to innovate. Looking at only sales and market share data to determine commercial success often provides courts with an incomplete picture, because sales and market share are merely means to businesses’ true goal: increased profits. Many inventions yield higher profits, without increasing sales or market share. Examples include inventions that lower a business’s fixed costs of production, and inventions that allow a business to charge a premium price to a smaller share of the market. Allowing admission of profits data to show commercial success would increase the accuracy of the commercial success analysis and would require only a minor clarification of this Court’s precedent.