A Unified Theory of Convoy Goods

Patent damages jurisprudence continues to struggle with how to treat the sales of noninfringing goods. When such goods have nothing to do with the patent, the answer is easy -- no damages. But when the goods are sold along with patented goods (so-called convoy goods), then courts and commentators are all over the place. The confusion is even worse because most discussion fails to consider whether and how convoy goods should affect lost profits versus reasonable royalty analysis. This commentary provides a general definition of convoy goods and provides a unified theory about how to treat them in both lost profits and reasonable royalties patent damages - when they should count and when they shouldn't.