X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Two principles are central to the law of patent infringement damages. The first is that, pursuant to the long tradition of common law burdens of proof, plaintiffs bear the burden of proving damages. The second is that, pursuant to the statute, damages awards must not be less than a reasonable royalty.

In the context of patent damages (and, indeed, in many other similar contexts as well) these two principles end up being in deep tension with each other. This is because, in almost all cases, we can be certain that the correct amount of a reasonable royalty is greater than zero. At the same time, in almost all cases, the evidence about the precise amount of what a reasonable royalty would have been involves unreliable guesswork. The main standard for determining the precise amount of a reasonable royalty is to ask what royalty a hypothetical licensing negotiation before infringement would have yielded. Since the negotiation is hypothetical, it inherently requires some element of speculation to know its precise result.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at customercare@alm.com

TJ Chiang

T.J. Chiang is an Assistant Professor of Law at George Mason University School of Law. He writes primarily in the area of intellectual property. His articles have appeared in various law reviews including the Michigan Law Review, the Northwestern University Law Review, and the Yale Law Journal.

More from this author ›

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2017 ALM Media Properties, LLC. All Rights Reserved.