The law is clear that it is the plaintiff-patentee's burden to prove both infringement and damages. It is unclear, however, in cases involving inconsistent manufacturing techniques, what level of evidence is required to meet this burden and when, if at all, such burden should pass to the defendant-infringer to provide rebuttal evidence. One consideration in this analysis is when findings of infringement can extend to the entire product line. Another matter considered in this paper is how the court deals with the confusion of goods and the commingling of records. This Article examines the various patent doctrines that may have some bearing on these issues, analyzes the relevant and analogous statutory law and case law, and, ultimately, proposes suggestions as to how to handle cases of this nature.
Julie E. Zink,
Shifting the Burden: Proving Infringement and Damages in Patent Cases Involving Inconsistent Manufacturing Techniques,
2 Hastings Sci & Tech. L. J. 81
Available at: https://repository.uchastings.edu/hastings_science_technology_law_journal/vol2/iss1/3