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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 Karen Hoffman Lent and Kenneth Schwartz
The DOJ’s intervention, and the judge’s ultimate decision, has exposed tensions between the DOJ and FTC, and within the FTC itself, and public scrutiny is far from over as the case heads to the Ninth Circuit on appeal.
By Nicole D. Galli
In the last five years, the courts have instead began wading into policy setting without the tools and resources to fully consider all the issues and various interests. Thus, the recent congressional efforts to consider these questions is welcome and, frankly, overdue.
By Scott Graham
Fifteen states had argued that they and their public universities shouldn’t have to expose their patents to validity review at the patent trial and appeal board.
By Jeffrey S. Ginsberg and Abhishek Bapna
Federal Circuit Finds District Court Erred in Analysis of Motivation to Combine Prior Art References, Yet Affirms Ultimate Conclusion of Non-obviousness Due to the Lack of a Reasonable Expectation of Success
Federal Circuit Rules that Issue Preclusion Bars a Party from Arguing in an Appeal of an Inter Partes Review Decision an Issue Previously Decided in Another Inter Partes Review Proceeding that Was Not Appealed