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For "IP Though of the Day", follow me on (Twitter) X, @ericbensen

Note. The Federal Circuit has granted a petition for a rehearing en banc in Ecofactor, Inc. v. Google, Inc., ostensibly to address the scope of admissible expert testimony on reasonable royalty awards for patent infringement.  I say “ostensibly” because unlike expert testimony on technological questions, the proper scope of expert testimony on reasonable royalty questions is closely intertwined with the substantive law governing reasonable royalty awards.  Consequently, Ecofactor is at least an opportunity for the Federal Circuit to clarify that substantive law including the proper role for apportionment. Practitioners and scholars have kindly cited to my two articles on apportionment of patent damages many times over the years, but those articles are now nearly 20 years old.  For my current analysis of the role of apportionment in patent damages calculations, see:

 

                    Eric E. Bensen, Patent Law Perspectives § 5.2 (Matthew Bender).

 

In particular, see section 5.2[1A], which covers the wealth of Supreme Court precedent on apportionment, and section 5.2[3][d], which covers apportionment in the context of reasonable royalty awards.

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