In this video, part of L&A’s Intellectual Property Year-in-Review video series, Andrea Reed covers 2023’s patent damages trends, cases, and expectations moving into 2024. Referenced cases include VLSI Technology v. Intel, Cyntec v. Chilisin, and Finjan v. SonicWall.
Record-Breaking Damages Awards
In recent years, damage awards for patent infringement have been trending up. The dollar amount of these awards has been increasing into the 9 and even 10 figures, and the number of cases with awards over $100M is also increasing.
Continued Federal Circuit Scrutiny
The Federal Circuit continued its trend of scrutinizing patent damages, and in December 2023 overturned one of the largest verdicts in patent law history ($2.18 billion). Key damages cases last year include VLSI Technology v. Intel, Cyntec v. Chilisin, and Finjan v. SonicWall.
Any reasonable royalty must seek to measure the value of the patented technology—and it must be apportioned to that value—by separating out and excluding other value in economic products or practices.
The reason apportionment is difficult is that it requires patent owners to assign value to something that may never have been individually sold. Damages experts sometimes look to the smallest salable unit (for a royalty base). Or they look to comparable licenses (for the royalty rate).
Amendments to FRE 702
The Federal Rule of Evidence governing admissibility of expert testimony was amended in December 2023.
Expectations for 2024
FRE 702 amendments are expected to result in more aggressive challenges to expert opinions and more critical review of expert opinions by district courts. This, combined with the Federal Circuit’s scrutiny of patent damages last year, may ultimately result in fewer admissible expert opinions and lower damages awards overall.
The information provided in this video does not, and is not intended to, constitute legal advice; instead, all information, content, and materials are for general informational purposes only. Viewers should contact an attorney to obtain legal advice with respect to any particular legal matter.
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