Patent Infringement: Proving Royalty Damages Amid Increased Court Scrutiny

Use of Licenses, the EMVR, Daubert, Survey Evidence

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, May 21, 2015

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to patent counsel for establishing infringement damages. The panel will review recent significant decisions and offer best practices for proving reasonable royalty damages.

Description

In the last few years, the Federal Circuit has closely examined the methodology and evidence being used to prove reasonable royalty damages. In response, the district courts have begun to look more carefully and favorably at Daubert challenges to damages experts. In December 2014, the Federal Circuit instructed in Ericsson, Inc. v. D-Link Sys., Inc., that a product having both patented and non-patented features can be used as the royalty base so long as the “ultimate reasonable royalty award” only reflects the incremental value of the patented feature.

In addition to the Ericsson case, other recent Federal Circuit rulings provide considerable guidance on establishing reasonable royalty damages. But, the cases also created potential pitfalls that counsel should avoid when putting together a damages case. Such issues involve the use of licenses and benchmarks, the entire market value rule, use of survey evidence, problems with multiple patents, FRAND licenses, and specific evidence for proving damages.

It is important that counsel understand the many changes that impact establishing reasonable royalty damages and effective methods for avoiding challenges in the district court and reversal by the Federal Circuit.

Listen as our authoritative panel reviews recent significant cases, examines the elements of proving royalty damages, and offers approaches for proving damages. The panel will outline addressing multiple patents and provide practical tips for proving royalty damages.

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Outline

  1. Recent significant decisions, including:
    1. Ericsson, Inc. v. D-Link
    2. VirnetX, Inc. v. Cisco
    3. Apple Inc. v. Motorola Inc.
    4. SSL Services, LLC v. Citrix Sys., Inc.
    5. Aqua Shield v. Inter Pool Cover Team
  2. Proving royalty damages
    1. Elements
    2. Methods
    3. Surveys (proving demand, usage and/or apportionment)
    4. Best practices

Benefits

The panel will review these and other key issues:

  • What guidance do recent court decisions provide for proving patent damages?
  • When can the EMVR be applied to establish royalty damages? What constitutes the smallest salable unit?
  • What methods can be used to provide reasonable royalty patent damages?
  • How can counsel overcome the challenges involved in proving royalty damages when multiple patents are involved?
  • How can surveys be used to prove or disprove the EMVR, and to estimate the demand for and value of a patent?

Faculty

Orion Armon
Orion Armon

Partner
Cooley

Mr. Armon’s practice focuses on patent litigation, with particular emphasis on software and electronics patent...  |  Read More

Krista F. Holt
Krista F. Holt

President & CEO
GreatBridge Consulting

Ms. Holt provides expert witness testimony at trial for patent, trademark, trade secret, copyright, false...  |  Read More

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