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Incentives Must Change: Addressing The Unpredictability Of Reasonable Royalty Damages, Daniel Mcmanus
Incentives Must Change: Addressing The Unpredictability Of Reasonable Royalty Damages, Daniel Mcmanus
daniel mcmanus
ABSTRACT
INCENTIVES MUST CHANGE: ADDRESSING THE UNPREDICTABILITY OF REASONABLE ROYALTY DAMAGES
Current law encourages patentees and defendants in a patent infringement suit to make the most widely varying arguments for reasonable royalty damages. The parties have so much discretion in presenting calculations for reasonable royalty damages that it is not uncommon for the patentee to request damages 80-100 times greater than the infringer’s proposed damages. Permitting so much discretion makes it highly unlikely that the resulting damages will be reasonable, and thus fails to achieve the goal of determining a reasonable royalty.
The problem is simple. Patents are difficult to …