The Problem of Mop Heads in the Era of Apps: Toward More Rigorous Standards of Value Apportionment in Contemporary Patent Law

Vol. 98, Journal of the Patent and Trademark Office Society 182

Univ. of San Francisco Law Research Paper No. 2017-07

42 Pages Posted: 25 Apr 2017 Last revised: 21 Jun 2017

See all articles by David J. Franklyn

David J. Franklyn

Golden Gate University - School of Law

Adam Kuhn

University of San Francisco

Date Written: August 10, 2016

Abstract

In 1884, the U.S. Supreme Court rejected a damage claim on a patented mop head improvement for failure to apportion profits attributable to the patented feature against the entire mop. 130 years later, jurists deal with the same core challenge of damage apportionment except with much more complicated products. Given the fact that as many as 250,000 patents impact the average consumer smart phone, can anyone say confidently that any single one of these patents drives consumer demand for the whole product or even for any particular feature of the product? And if not, how much worth does any one patent have in relation to the value of the entire product? For example, what portion of the sales price of an iPhone is attributable to a particular individual feature of that phone, such as the ability to use FaceTime?

Keywords: Intellectual property, patent, apportion profits, damage apportionment, product value

Suggested Citation

Franklyn, David J. and Kuhn, Adam, The Problem of Mop Heads in the Era of Apps: Toward More Rigorous Standards of Value Apportionment in Contemporary Patent Law (August 10, 2016). Vol. 98, Journal of the Patent and Trademark Office Society 182 ; Univ. of San Francisco Law Research Paper No. 2017-07. Available at SSRN: https://ssrn.com/abstract=2957950

David J. Franklyn (Contact Author)

Golden Gate University - School of Law ( email )

536 Mission Street
San Francisco, CA 94105
United States

HOME PAGE: https://www.ggu.edu/shared-content/faculty/bio/david-franklyn

Adam Kuhn

University of San Francisco ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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