John Golden has published a paper titled Judicial Policing of Patent Damages Experts, 98 Texas Law Review 1307 (2020). Here is a link, and here is the abstract:
The calculation of patent damages such as a reasonable royalty presents significant challenges for which the use of expert testimony is predictable, if not unavoidably vital. Struggles to employ and at the same time guide and restrain expert testimony on reasonable royalty damages have become prominent in the last two decades, in substantial part because of the rise of patent assertion entities (PAEs) that have intensified stresses on the United States patent system. Patent law’s peculiarly centralized court of appeals, the United States Court of Appeals for the Federal Circuit, has responded to such stresses by limiting the admissibility or cognizable sufficiency of expert evidence on reasonable royalties for patent infringement. Although seemingly more aggressive than the general appellate norm, this appellate-level activity has so far appeared in line with general understandings of the proper judicial role in regulating expert testimony and reliance on it. A strict understanding of the Federal Circuit’s rule of apportionment based on the smallest salable patent-practicing unit (SSPPU) might lead to an undue downward distortion of reasonable royalty awards under certain circumstances, but there currently seems enough flex in the articulation of the rule to accommodate corrective adjustments. Although imperfect, the current approach to regulating expert testimony on patent damages seems to embody at least a plausibly satisfactory form of “muddling through,” approximating the demands for reasoned analysis that courts commonly impose on the work of expert administrative agencies.
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