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Supreme Court asked to review entire market value rule (EMVR) standard

A patent holder recently petitioned the U.S. Supreme Court to review the Federal Circuit’s 2018 decision on what a patentee must do to base damages on the entire market value rule (EMVR).

Enplas Display Device Corp. v. Seoul Semiconductor Co.

Court majority says jury award was based on insufficient evidence because expert’s damage theory envisioned a premium freedom-to-operate license based on past sales of noninfringing products; dissent says expert’s hypothetical negotiation reflected real world concerns and supported award.

Federal Circuit Majority Says ‘Premium’ License Calculation Includes Noninfringing Products

Court majority says jury award was based on insufficient evidence because expert’s damage theory envisioned a premium freedom-to-operate license based on past sales of noninfringing products; dissent says expert’s hypothetical negotiation reflected real world concerns and supported award.

Bio Rad Labs. v. 10X Genomics, Inc.

Allowing that apportionment is “inherently imprecise,” court says damages expert’s supplemental report shows that the apportionment underlying three benchmark licenses aligns with the expert’s royalty rate in the hypothetical license; expert’s royalty opinion is admissible under Daubert.

Daubert Ruling on How to Satisfy Apportionment When Using Benchmark Licenses

Allowing that apportionment is “inherently imprecise,” court says damages expert’s supplemental report shows that the apportionment underlying three benchmark licenses aligns with the expert’s royalty rate in the hypothetical license; expert’s royalty opinion is admissible under Daubert.

Bio Rad Labs. v. 10X Genomics, Inc.

Court finds plaintiff expert’s lost profits calculation regarding two-supplier market is inadmissible and rejects reasonable royalty to the extent expert failed to explain how apportionment in benchmark licenses relates to expert’s hypothetical license.

Daubert Ruling on How to Satisfy Apportionment When Using Benchmark Licenses

Court finds plaintiff expert’s lost profits calculation regarding two-supplier market is inadmissible and rejects reasonable royalty to the extent expert failed to explain how apportionment in benchmark licenses relates to expert’s hypothetical license.

Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc.

Federal Circuit clarifies EMVR applicability in calculating reasonable royalty related to a multicomponent, infringing product that contains other valuable nonpatented features; court explains how the patent holder must show that the patented feature was the sole driver of consumer demand.

Federal Circuit Sharpens EMVR Test Applicable to Multicomponent Products

Federal Circuit clarifies EMVR applicability in calculating reasonable royalty related to a multicomponent, infringing product that contains other valuable nonpatented features; court explains how the patent holder must show that the patented feature was the sole driver of consumer demand.

‘Lady Liberty’ Stamp Costs USPS Millions in Copyright Infringement

Court finds USPS’s unauthorized use of image of Las Vegas Lady Liberty on stamps infringed creator’s copyright and awards damages resulting from a hypothetical mixed license; USPS’s unique licensing history does not limit damages under applicable fair market value measure of damages.

Davidson v. United States

Court finds USPS’s unauthorized use of image of Las Vegas Lady Liberty on stamps infringed creator’s copyright and awards damages resulting from a hypothetical mixed license; USPS’s unique licensing history does not limit damages under applicable fair market value measure of damages.

Intellectual property trends: Average royalty rates, most active industries, and more

Explore intellectual property trends, including average royalty rates, most common royalty payment agreement bases, and most active industries. View real-world statistics based on thousands of actual license agreements.

Court shows itself flexible on apportioning for royalty calculation

It’s written in stone that experts developing a reasonable royalty for a multicomponent product must be careful to apportion damages to the product’s protected features. However, there is flexibility in how experts perform the apportionment, the Federal Circuit recently confirmed.

Federal Circuit Clarifies Different Ways to Effect Apportionment

Federal Circuit vacates damages, finding expert opinion was inadmissible because Georgia-Pacific discussion lacked analysis that tied G-P factors to facts of the case; court affirms apportionment requirement need not be satisfied through royalty base.

Exmark Mfg. Co. v. Briggs & Stratton Power Prods. Grp. LLC

Federal Circuit vacates damages, finding expert opinion was inadmissible because Georgia-Pacific discussion lacked analysis that tied G-P factors to facts of the case; court affirms apportionment requirement need not be satisfied through royalty base.

Finjan, Inc. v. Blue Coat Systems, Inc. (II)

Federal Circuit strikes down portion of damages, finding expert’s royalty base was unsupported because she merely apportioned to the “smallest identifiable technical component,” which itself was a multicomponent software engine that performed both noninfringing and infringing functions.

Court Doubles Down on Apportionment for Multifunctional Smallest Salable Unit

Federal Circuit strikes down portion of damages, finding expert’s royalty base was unsupported because she merely apportioned to the “smallest identifiable technical component,” which itself was a multicomponent software engine that performed both noninfringing and infringing functions.

Court’s Damages Model for SEP Infringement Fails Apportionment Rules

Federal Circuit invalidates infringement award where trial court’s damages model failed to filter out value to the patent in suit accruing from its being essential to wireless standard and failed to adjust its Georgia-Pacific analysis for standardization.

Commonwealth Sci. & Indus. Research Organisation v. Cisco Sys.

Federal Circuit invalidates infringement award where trial court’s damages model failed to filter out value to the patent in suit accruing from its being essential to wireless standard and failed to adjust its Georgia-Pacific analysis for standardization.

Complex Facts Test Patent Experts’ Apportionment Skills

Court admits apportionment based on lines of infringing code and on value defendant places on product features in accused products but excludes apportionment using forward citation analysis for failure to show value of asserted patents in marketplace.

Uncritical Use of Royalty Rate Data Spoils Damages Opinion

Court excludes most of damages testimony under Daubert because expert based reasonable royalty calculation on data from IP databases and publications without subjecting information to rigorous analysis and establishing its relevance to case at hand.

Finjan, Inc. v. Blue Coat Systems, Inc. (I)

Court admits apportionment based on lines of infringing code and on value defendant places on product features in accused products but excludes apportionment using forward citation analysis for failure to show value of asserted patents in marketplace.

Chico’s Fas, Inc. v. Clair

Court excludes most of damages testimony under Daubert because expert based reasonable royalty calculation on data from IP databases and publications without subjecting information to rigorous analysis and establishing its relevance to case at hand.

EMVR Must Not Swallow Apportionment, Federal Circuit Says

Federal Circuit strikes award against Apple, finding it resulted from district court’s misstating the law on the entire market value rule and apportionment and court’s failure to serve as gatekeeper under Daubert and exclude unreliable damages testimony.

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