Patent Claim Apportionment, Patentee Injury and Sequential Invention

42 Pages Posted: 18 Apr 2011 Last revised: 12 Mar 2013

See all articles by Amy L. Landers

Amy L. Landers

Drexel University Thomas R. Kline School of Law

Date Written: April 15, 2011


Reasonable royalty compensation for patent infringement is the most popular form of recovery and becomes more so every year. This may be based on the unfortunate but accurate perception that patentees can win big using the overly malleable legal standards that now govern such awards. One of the most glaring shortcomings of the standard is that it permits an award of a reasonable royalty based on doctrine that has lost touch with its statutory purpose.

This article sets forth a theory of patentee injury to establish a causative link between the inventive contribution and the reasonable royalty award. After doing so, this article concludes that apportionment is the correct starting point for compensating the patentee for the injury suffered from infringement. This work undertakes a detailed historical analysis of the current damages statute’s history to demonstrate that the intent of the current patent damages statute compels claim apportionment.

In addition, implementing apportionment is necessary to effectuate the fundamental purpose of the patent system, which is to increase invention in the aggregate. Science is built on antecedents. Under current standards, incumbent patent holders who seek reasonable royalty awards for more than their contribution present a financial risk for subsequent creators who seek to push the boundaries of knowledge forward. Claim apportionment solves this problem awarding monetary relief solely on that portion of the infringed claim that represents the patentee’s contribution to the art at the time of invention. This result minimizes the burden on future inventors, is consistent with the purpose of the statute, and fully compensates those who have created patentable inventions in the past.

Keywords: Patent, Damages, Remedies, Invention, Creativity, Patent Reform, Patent Valuation, Jury Trials

Suggested Citation

Landers, Amy L., Patent Claim Apportionment, Patentee Injury and Sequential Invention (April 15, 2011). George Mason Law Review, Vol. 19, p. 471, 2012. Available at SSRN: or

Amy L. Landers (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

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