A Restitution Perspective on Reasonable Royalties

36 Rev. Litig. 335 (2017)

U of Texas Law, Public Law Research Paper

44 Pages Posted: 6 Dec 2017

See all articles by John M. Golden

John M. Golden

University of Texas at Austin - School of Law

Karen Sandrik

Willamette University - College of Law

Date Written: December 1, 2017

Abstract

The law of restitution suggests multiple ways to improve reasonable royalty analysis in patent law. Restitution law has substantial experience in addressing issues that also appear in the assessment of reasonable royalties. These issues include problems of reasonably apportioning value among multiple contributions to an overall activity or outcome, assigning burdens of production and proof with respect to valuation and apportionment, and assuring consistency of remedies with statutory law or other expressions of public policy. In contrast with the often relatively blunderbuss approach of patent law, the law of restitution has responded to such problems in at least three context-sensitive ways: (1) by developing an array of alternative measures for monetary relief, (2) by tying deployment of these measures to similarly reticulated classifications of parties’ relative responsibility, and (3) by showing sensitivity to practicalities of proof and background policy concerns. This Article suggests that, in relation to reasonable royalties, patent law can learn much from the law of restitution’s comparatively precise yet flexible approach.

Keywords: Patent Damages, Reasonable Royalty, Restitution, Remedies

Suggested Citation

Golden, John M. and Sandrik, Karen, A Restitution Perspective on Reasonable Royalties (December 1, 2017). 36 Rev. Litig. 335 (2017), U of Texas Law, Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=3081068

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)

Karen Sandrik

Willamette University - College of Law ( email )

245 Winter St. SE
Salem, OR 97301
United States

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