Reprinted with permission from the May 24, 2011 edition of Corporate Counsel ©2011 ALM Media Properties, LLC.
In recent years, several patent-damages decisions have given guidance on the increased rigor with which courts scrutinize expert testimony regarding the proper royalty base in reasonable royalty cases. A trend detected from these recent decisions is the struggle both courts and parties have with the concept of "apportionment"; i.e., what is the contribution of this particular invention or creation to the demand for the product at issue? There is also a body of copyright case law that continues to develop in the area of apportionment. One major key to unlocking the correct revenue base is the demonstration, through sufficient admissible evidence, of a "causal nexus" between the plaintiff's contribution (whether patented or copyrighted) and the demand for the infringing product.
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From the Experts: Shifting the Burden of Proof
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