Model Jury Instructions for Reasonable Royalty Patent Damages

24 Pages Posted: 30 Nov 2016 Last revised: 15 Feb 2017

See all articles by Jorge L. Contreras

Jorge L. Contreras

University of Utah - S.J. Quinney College of Law

Michael Eixenberger

University of Utah, S.J. Quinney College of Law, Students

Date Written: November 28, 2016

Abstract

Consistent, accurate and understandable jury instructions are critical to the determination of damages in patent cases. In January 2016 the Federal Circuit Bar Association (“FCBA”) amended its popular model jury instructions. Among other things, the 2016 amendments substantially reframed the instructions regarding the calculation of reasonable royalty damages in patent cases, replacing the fifteen “Georgia-Pacific” factors with a streamlined set of three factors emphasizing the value contribution of the patented technology to the overall product and comparable license agreements. This Essay discusses the history and implications of the FCBA instruction change for reasonable royalty damages. It assesses the adherence of the reformulated damages analysis to the Federal Circuit’s rulings regarding damages calculations in Ericsson v. D-Link and other recent case law, and compares the FCBA instruction with corresponding instructions developed by the American Intellectual Property Law Association (“AIPLA”) and the Northern District of California. We also present new empirical data regarding the use and adoption of model jury instructions in cases in which reasonable royalty damages are adjudicated. We find that a wide variety of instructions are used, partially defeating the goals of consistency and efficiency that model instructions seek to achieve. We conclude by recommending that the Federal Circuit endorse a single set of model jury instructions for patent cases, and that it consider the new FCBA instructions for this purpose. We also urge the FCBA and other organizations developing model jury instructions to continue to emphasize the traditional incremental value approach to patent valuation, and to develop additional jury instructions addressing issues raised by standards-essential patents.

Keywords: patent, reasonable royalty, damages, remedies, jury, FCBA, jury instructions, federal circuit bar association, FRAND

Suggested Citation

Contreras, Jorge L. and Eixenberger, Michael, Model Jury Instructions for Reasonable Royalty Patent Damages (November 28, 2016). 57 Jurimetrics J. 1 (2017); University of Utah College of Law Research Paper No. 187. Available at SSRN: https://ssrn.com/abstract=2875107

Jorge L. Contreras (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Michael Eixenberger

University of Utah, S.J. Quinney College of Law, Students ( email )

332 South 1400 East
Salt Lake City, UT 84112
United States

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