Recent Federal Circuit case law has changed the game regarding reasonable royalty damages in patent cases, placing a renewed focus on the nature and type of evidence required to tie the damages to the patented invention, or in most cases the lack thereof. Generalized theories and abstract constructs have been unambiguously rejected in favor of the rigorous application of case-specific facts. As a result, it is critical that practitioners utilize targeted efforts to develop detailed damages evidence designed to avoid these pitfalls and consider litigation tactics to exploit the more stringent damages proofs now being required.
The Evolving Patent Damages Landscape
Patentees and accused infringers alike have long based reasonable royalty damages calculations on the somewhat wishy-washy application of well-established factors set forth in Georgia-Pacific v. U.S. Plywood, 318 F.Supp 1116 (S.D.N.Y. 1970), designed to make a hindsight approximation of a “hypothetical negotiation” between the patentee and accused infringer for a license to the patent-in-suit.
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