Apportionment Treats The Symptom, Not The Disease

Law360, New York (December 9, 2011, 12:46 PM EST) -- Consider the following scenario: A damages expert calculates a reasonable royalty damages award by first determining that the average royalty rate in an industry is, say, 1 percent, and then applying this rate to a royalty base consisting of the revenue of a product that incorporates the patented technology.

The jury, persuaded by the expert’s testimony, awards a sizable dollar amount of damages. However, the patented technology covers only a “small” component of the product, and many other technologies and assets are required to produce the...
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