Catch-22 : The Elusiveness of Commuted Per-Unit Royalty Conversions and their Sufficiency in Hypothetical Negotiation Calculations Under Protective Order

Catch-22 : The Elusiveness of Commuted Per-Unit Royalty Conversions and their Sufficiency in Hypothetical Negotiation Calculations Under Protective Order

Journal article

1 online resource (pages 124-141)

Calculating and proving damages is an essential part of patent infringement litigation. The process can be as contentious as proving the infringement itself. Oftentimes, the vehicle that experts use to prove damages is a hypothetical negotiation model. These models involve calculations of the monetary value of the patent-at-issue or other similar patents. Courts use the Daubert standard to determine whether the negotiation models and calculations being used are reliable. When models are unreliable, the courts make those models and calculations inadmissible. Such a ruling could be the difference between being awarded hundreds of thousands of dollars versus hundreds of millions of dollars. This case note reviews the evidence for a damages award in a case where the Federal Circuit Court of Appeals vacated its own ruling. The Federal Circuit will try again to determine whether the district court erred in its allowance of testimony from a damages expert. At bottom, the en banc ruling will turn on whether a perfectly reasonable hypothetical negotiation model, such as one involving a commuted per-unit royalty, can nonetheless be inadmissible under evidentiary rules because the model is based on calculations under a protective order.

Crossref

John Marshal Review of Intellectual Property Law, Volume 24, Issue 2, 2025, page 142-181

John Marshal Review of Intellectual Property Law

[Chicago, Illinois] : UIC Review of Intellectual Property Law, 2025.

English

https://repository.law.uic.edu/cgi/viewcontent.cgi?article=1528&context=ripl

External Online Journals > The John Marshall Review of Intellectual Property Law