StufFThat Genie Back in the Bottle: Stop Wishful Thinking About Royalty Base, Rate, and the EMVR

摘要

Unlike a mythical genie who grants three wishes, there is no such windfall when attempting to tie a rate to a royalty base to capture the entire market value of an infringing product. In fact, just this sort of wishful thinking can seriously undermine your damages case. In a 2009 opinion, then-Chief Judge Paul Michel of the Federal Circuit casually observed, "There is nothing wrong with using the market value of the entire product, especially when there is no established market value for the infringing component or feature, so long as the multiplier [rate] account for the proportion of the base [is] represented by the infringing component or feature."