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Expert Analysis

How To Get A Survey In A Patent Case Kicked Before Trial

By Brooke Myers Wallace (August 16, 2017, 1:06 PM EDT) -- As patent plaintiffs are no doubt well aware, the Federal Circuit in recent years has cracked down on the ways to properly calculate patent damages. Today, as articulated in Ericsson Inc. v. D-Link Systems Inc., patent damages must apportioned to the "economic footprint" of the purported invention, i.e., "be based on the incremental value that the patented invention adds to the end product," and "reflect the value attributable to the infringing features of the product, and no more."[1] Apportionment is an issue of admissibility, so a failure of apportionment is vulnerable to attack at the Daubert stage.[2]...

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