by Dennis Crouch
The Federal Circuit has reversed a lost profits award in a patent infringement case involving self-balancing unicycles, holding that the district court applied the wrong legal standard when it excluded evidence of noninfringing substitutes that were not actually "on sale during period of infringement." In Inventist Inc. v. Ninebot Inc. (USA), No. 2024-1010 (Fed. Cir. Nov. 14, 2025) (nonprecedential), the court reaffirmed the principle from Grain Processing Corp. v. American Maize-Products Co., 185 F.3d 1341 (Fed. Cir. 1999), that available alternatives (even if not on the market) may preclude lost profits damages if the accused infringer shows they were readily available and acceptable to consumers.
This decision has some parallels to Masimo v. Apple, where Apple argues that damages should account for its prior noninfringing Apple Watch version that already included heart rate notifications before adding the patented double-check refinement. See Dennis Crouch, Masimo v. Apple: Does "Patient Monitor" Cover Apple's Consumer Wearable, Patently-O (Nov. 17, 2025).