Reconsidering the Georgia-Pacific Standard for Reasonable Royalty Patent Damages
2010; Brigham Young University; Volume: 2010; Issue: 5 Linguagem: Inglês
ISSN
0360-151X
Autores Tópico(s)Legal and Constitutional Studies
ResumoDetermining damages for infringement is one of the most important—and controversial—issues in patent litigation. The current fifteen-factor Georgia-Pacific standard for determining a reasonable royalty has become increasingly difficult for juries to apply in patent disputes involving complex, high-technology products, resulting in unpredictable damage awards that tend to overcompensate patentees. This Article proposes a more manageable alternative to GeorgiaPacific when an acceptable noninfringing substitute for the patented technology exists. Specifically, in a hypothetical bargain for a patent license, both economic and negotiation theory explain that a rational patent licensor would agree to pay only the costs it would incur to adopt and implement a noninfringing substitute technology, plus any lost benefits related to the substitute’s use. Indeed, the Federal Circuit already has recognized an analogous limitation on damages in the context of lost profits, although it has defined the universe of alternatives too narrowly by refusing to consider imperfect substitutes for the patented technology. * Visiting Assistant Professor, Chicago-Kent College of Law. J.D., 2004, University of Pennsylvania Law School; B.A., 2000, Swarthmore College. Email: cseaman@kentlaw.edu. I would like to thank Tom Cotter, Robert Knowles, Dino Koutsoubas, David OSteen, Hank Perritt, Christopher Scharff, and David Schwartz for their valuable comments and suggestions, as well as the participants of a faculty workshop at Chicago-Kent College of Law. I would also like to thank Lucy Moss of the Chicago-Kent Law Library for her research assistance. DO NOT DELETE 2/16/2011 12:58 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 201
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