Chapter 1: Reasonable Royalties
Forthcoming, Patent Remedies and Complex Products: Toward a Global Consensus, Ch. 1 (Brad Biddle, Jorge L. Contreras, Brian J. Love, and Norman V. Siebrasse, eds., Cambridge University Press)
102 Pages Posted: 10 Oct 2018 Last revised: 13 Nov 2018
Date Written: September 13, 2018
(1) describes the current state of, and normative basis for, the law of reasonable royalties among the leading jurisdictions for patent infringement litigation, as well as the principal arguments for and against various practices relating to the calculation of reasonable royalties; and
(2) for each of the major issues discussed, provides one or more recommendations.
The chapter’s principal recommendation is that, when applying a “bottom-up” approach to estimating reasonable royalties, courts should replace the Georgia-Pacific factors (and analogous factors used outside the United States) with a smaller list of considerations, specifically:
(1) calculating the incremental value of the invention and dividing it appropriately between the parties;
(2) assessing market evidence, such as comparable licenses; and (3) where feasible and cost-justified, using each of these first two considerations as a “check” on the accuracy of the other.
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