Last week during the BVR webinar Damages in Patent Infringement Lawsuits Rick Bero (The Bero Group) remarked that the recent Uniloc/Microsoft case brought the Entire Market Value Rule (EMVR) to the forefront. Citing the case:
“The entire market value rule allows a patentee to assess damages based on the entire market value of the accused product only where the patented feature creates the basis for customer demand or substantially create[s] the value of the component parts.” Uniloc USA, Inc. v. Microsoft Corp. (Fed. Cir. 2011) citing Lucent Tech., 580 F.3d at 1336; Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1549-50 (Fed. Cir. 1995).
“There has been a particular amount of focus on the Entire Market Value Rule in the past two years that has come out of computer and software cases,” says Bero. “It is easy to understand because products that have such a large number of technologies. It can be a concern that each of those technologies contributes to the value, and the EMVR would not be necessarily applicable.”
“The Damages in Patent Infringement Lawsuits” webinar was the second in BVR’s Advanced Webinar Series on Lost Profits Damages. The series continues on January 21 with “Lost Profits in Trademark and Copyright Cases,” featuring John Pilkinton (Lone Peak Valuation Group) and John Slafsky (Wilson Sonsini Goodrich & Rosati). The webinar provides an in-depth examination at the ins-and-outs of patent and trademark damages cases, claims, analysis, and restitutions.
The final webinar of the series is “The Latest on Motions to Exclude Financial Experts: The Now-Routine Trial Tactic that Works” on January 28 with Jonathan Dunitz (Friedman Gaythwaite Wolf & Leavitt) and Robert Lloyd (Univ. of Tennessee College of Law).
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