Allocating Additional Profits between the Patentee and the Infringer Using the Footprint Methodology

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If nothing else, current Federal Circuit case law is clear on one thing: in calculating a reasonable royalty owed for a defendant’s infringing acts, some effort should be taken to identify the value of the patented invention separate from the value of the nonpatented features. That said, judicial guidance is conspicuously absent on one important question: After identifying profits attributable to the claimed invention, how should those profits be allocated between the patentee and the infringer?

Originally published in Insights Issue 107 (Spring 2016)

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