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The rate of the reasonable royalty awarded to a successful patent plaintiff must be based on the facts of the case. A damages expert cannot merely pay lip service to the Georgia-Pacific factors and then “pluck” a royalty rate from thin air.
The rate of the reasonable royalty awarded to a successful patent plaintiff must be based on the facts of the case. Exmark Mfg. Co. Inc. v. Briggs & Stratton Power Products Group, LLC, No. 2016-2197 at 28 (Fed. Cir. Jan. 12, 2018). A damages expert cannot merely pay lip service to the Georgia-Pacific factors and then “pluck” a royalty rate from thin air. Id. Moreover, the reasonable royalty must be apportioned, so that it is based on the patented contribution and not unpatented aspects of the accused product. This can be achieved by adjusting either the royalty base or the royalty rate. However, the rate selected must be based on facts presented to the jury. It is insufficient to address the Georgia-Pacific factors superficially and then announce a royalty rate, without explaining how those factors or other evidence led to the selection of the rate. Id. at 24-25.
By J. Alexander Lawrence
Since the advent of the Internet, the music industry has been in a pitched battle to combat online piracy. Initially, the industry focused on shutting down services that offered peer-to-peer or other similar platforms, such as Napster, Aimster and Grokster. For a time, the industry also focused on filing claims against individual infringers to dissuade others from engaging similar conduct. In recent years, the industry seems to have shifted focus toward Internet Service Providers.
By Connor Tucker
The Defend Trade Secrets Act (DTSA) requires pleading a connection between a trade secret, a product or service, and interstate commerce. But failure to prove such a connection divests the district court of subject matter jurisdiction. This article summarizes the first three years of cases discussing the jurisdictional element and explores implications.
By Veronica Mullally Munoz
By Jeffrey S. Ginsberg
SCOTUS Confirms that Secret Sales Continue to Qualify as Prior Art Under the AIA
New York District Judge Extends Estoppel Under §315(e) to Grounds Not Raised in Petition for Inter Partes Review