Reasonable Certainty in Contract and Patent Damages

23 Pages Posted: 24 Mar 2017 Last revised: 29 Mar 2017

See all articles by John M. Golden

John M. Golden

University of Texas at Austin - School of Law

Date Written: March 2017


In the face of difficult-to-quantify private-law harms, courts commonly apply standards of reasonableness in assessing whether asserted damages have been proven with adequate certainty. In contract cases in particular, courts have a historical reputation for being demanding in applying a requirement of “reasonable certainty” for compensatory damages. Contract law’s reasonable certainty standard provides useful lessons for how courts might approach the award of reasonable royalty damages in patent law. Quite generally, contract law’s reasonable certainty standard indicates how courts can be demanding but also flexible in determining what constitutes competent evidence for a difficult-to-quantify harm. More specifically, judicial approaches to implementing the reasonable certainty standard suggest that, in calibrating and enforcing evidentiary standards for reasonable royalty damages, courts might helpfully consider the blameworthiness or egregiousness of parties’ conduct, the state of the art or of available evidence for proving damages, and the amount of damages alleged.

Keywords: patent damages, contract damages, reasonable royalty, reasonable certainty, damages valuation

Suggested Citation

Golden, John M., Reasonable Certainty in Contract and Patent Damages (March 2017). Harvard Journal of Law and Technology, Vol. 30, Special Symposium, at 257-278, 2017, U of Texas Law, Law and Econ Research Paper, Available at SSRN:

John M. Golden (Contact Author)

University of Texas at Austin - School of Law ( email )

School of Law
727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1469 (Phone)

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