In intellectual property cases (relating to copyright or trademark, for instance), it is often difficult for plaintiffs to determine the exact volume of infringement. Thus, statutory damages are often calculated as a multiple of the price for the use of the property, if the infringer had requested and paid for permission.^[5] Other statutes may set a fixed amount for each day the violation occurred, for each violation, work, article, or type of good.


One area of debate between legal and economic scholars that pertains to the quantification of statutory patent damages is whether the court may rely on information that postdates the determined date of the hypothetical negotiation between the patent holder and the alleged infringer. Some commentators argue that the court should rely on postdate information to deter patent infringement and ensure the patent holder's adequate compensation,^[9] while others argue that doing so would "give the potential licensee a free option to infringe, which would discourage the potential licensee from promptly entering into a licensing agreement."^[10]