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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 Scott D. Locke
The recent In Re Rembrandt Technologies decision is a reminder of both the potential consequence of a patent holder’s disingenuous assertion of unintentionality and the challenges that defendants face when raising the improper filing of a petition to revive a lapsed patent as a defense.
By Robert W. Clarida and Robert J. Bernstein
Recently, the Southern District of New York resolved a question that neither the Southern District nor the Second Circuit had ever squarely faced: Can the lawful owner of an art object create and post a photograph of that object in connection with the sale of the object through an online platform such as eBay, without the permission of the owner of copyright in the object?
By Olivera Medenica
A look at several unique trademark cases where the plaintiff fashion brand proactively sought to invalidate a competitor’s non-traditional trademarks, an action which reflects a push back on increasingly aggressive litigation tactics by fashion brands seeking to blur the lines between a non-protectable fashion trend and a protectable trademark.
By Scott Graham
The USPTO announced revisions to PTAB procedures that formalize Andrei Iancu’s control over the 250 administrative patent judges and their policy-making, while making that control more transparent.