No. Windsurfing can't collect for 'lost profits' because it couldn't prove that BIC's customers would have bought its expensive boards. The law requires Windsurfing to show that 'but for' BIC selling its cheap boards, those customers would have bought Windsurfing's boards instead. That's just not realistic. Someone looking to buy a $350 beginner sailboard isn't going to suddenly decide to buy a $600 professional racing board if the cheap one isn't available. They would probably buy another cheap board from a different company. Because the two companies weren't really competing for the same customers, Windsurfing didn't 'lose' those sales.

No, Windsurfing didn't prove it likely would have sold BIC's boards if BIC hadn't copied. The court said Windsurfing shouldn't get money based on its market share because it didn't show BIC's customers would have bought from Windsurfing in the same amount, since they sold pretty different boards at different prices. Windsurfing should get some money for sales its partners lost, and some for BIC's copying in general. The court agreed Windsurfing shouldn't get money for lowering prices, since other things made them do that. It also said BIC doesn't owe for boards it bought or ordered before Windsurfing's patent was reissued, and that BIC doesn't have to pay extra punishment money since it didn't copy on purpose.

No. An award of lost profits requires the patent owner to prove that 'but for' the infringement, it would have made the infringer's sales, and this causal link is not established where the parties' products are not competitive substitutes. The district court's application of a market share theory was inappropriate because Windsurfing and BIC operated in different segments of the sailboard market. Windsurfing sold premium-priced, specialized boards, while BIC sold low-priced, entry-level boards. The significant price disparity and product differences mean that BIC's price-sensitive customers would likely have purchased other low-cost alternatives, not Windsurfing's expensive boards, had BIC not been in the market. The fundamental assumptions of the Panduit test—that there is demand for the patented product and an absence of non-infringing alternatives—are not met when the infringer's product appeals to a different customer base. Furthermore, Windsurfing's extensive licensing program suggests it valued its patent through royalties rather than by maintaining market exclusivity.

No, Windsurfing did not prove with reasonable probability that it would have made BIC's sales but for BIC's infringement. The court reverses the award of lost profits based on Windsurfing's market share because Windsurfing did not show that BIC's customers would have purchased from Windsurfing in proportion to its market share, given the significant differences in the types of boards sold and their prices. Windsurfing is entitled to lost royalties on sales its licensees would have made but for the infringement, and reasonable royalties on any other infringing sales by BIC. The court affirms the denial of lost profits for price erosion, finding evidence of other market forces that forced Windsurfing to lower prices. The court also affirms the grant of absolute intervening rights to BIC for sailboards it had purchased or had on order before the reissue date, and the denial of enhanced damages and attorney fees, finding no clear error in the district court's determination that BIC's infringement was not willful.

BIC Leisure Products, Inc. v. Windsurfing International, Inc.

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