… This Article brings the field one step closer to evidenced-based intellectual property law. It investigates one area – the law of patent damages. It tackles the unmet need to examine the factual basis behind the judicial doctrines for calculating patent damages. Under 35 USC§ 284, courts frequently use ‘reasonable royalty’ patent damages to compensate patentees for patent infringements. A reasonable royalty is calculated by mimicking the ways that patent licensing parties calculate royalties. Courts imagine the infringed patentee as a willing licensor and the infringer as a willing licensee. They then envision, ‘the terms of a licensing agreement reached as the result of a supposed meeting between the patentee and the infringer at the time infringement began’. Though such a meeting never happened, courts aim to determine the amount of royalties that the infringer would have paid the patentee had there been a negotiated agreement. This number becomes the award of patent damages that the infringer must pay the patentee. This approach is called ‘hypothetical negotiation’ …
Taorui Guan, Evidence-Based Patent Damages, 28 Journal of Intellectual Property Law 1 (2021).
First posted 2021-01-27 11:30:52
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