Overlooked Patent Cases: Scrutiny Of Damage Apportionment

Law360 (October 27, 2020, 3:59 PM EDT) -- The requirement that damages experts in patent cases must properly apportion their proposed damages figures to reflect the incremental value provided by the patents-in-suit, and nothing more, is a legal enigma.

Although the U.S. Court of Appeals for the Federal Circuit repeatedly has stressed that ascertaining patent damages necessarily involves speculation and imprecision, it also has indicated that determining a patented invention's footprint in the marketplace requires at least some level of quantitative or mathematic underpinning.

Depending on the facts and circumstances of a given case, how to reconcile these two seemingly conflicting principles may be unclear. This is especially so...

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