The 25-Percent Rule ... 2.0

Law360, New York (August 19, 2011, 1:56 PM EDT) -- “Data! Data! Data!” he cried impatiently. “I can’t make bricks without clay.” (Sir Arthur Conan Doyle, "The Adventure of the Copper Beeches.")

Methods or Data?

The Federal Circuit’s Uniloc decision has buried for good the damages method known as the “25-percent rule.” But Uniloc reflects a fundamental ambiguity in recent damages jurisprudence: When should the trial court restrict inappropriate methods, and when should it restrict inappropriate data?

New plaintiff theories have emerged to exploit this ambiguity. Much like the 25-percent rule did during its long reign,...
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