Patent Damages in the Wake of Uniloc v. Microsoft

The ABA Section of Litigation recently published “Patent Damages in the Wake of Uniloc v. Microsoft” by Shankar Iyer, a principal of Cornerstone Research, in its spring 2012 Intellectual Property Litigation newsletter. Notwithstanding several watershed cases in which courts have rejected flawed damages approaches, interpreting what the courts will consider proper is a tricky exercise for counsel and damages experts. Mr. Iyer discusses how courts are not applying consistent standards for damages approaches such as “basis for customer demand” and entitlement to the entire market value, and for the treatment of comparable licenses. What is clear, however, is that market-based evidence will become increasingly important in ascertaining the basis for demand for patented inventions at issue. Courts also appear to require more careful and fact-specific analysis of comparable licenses. Mr. Iyer suggests that these developments are likely to increase the importance of consumer behavior experts and those with specific expertise in the practice of licensing.