Reasonable Royalties

Authors

Thomas F. Cotter, University of Minnesota Law SchoolFollow
John M. Golden, The University of Texas at Austin School of LawFollow
Oskar Liivak, Cornell Law SchoolFollow
Brian J. Love, Santa Clara University School of LawFollow
Norman Siebrasse, University of New BrunswickFollow
Masabumi Suzuki, Nagoya University
David O. Taylor, Southern Methodist University, Dedman School of LawFollow

Abstract

This chapter:

(1) describes the current state of, and normative basis for, the law of reasonable royalties among the leading jurisdictions for patent infringement litigation, as well as the principal arguments for and against various practices relating to the calculation of reasonable royalties; and

(2) for each of the major issues discussed, provides one or more recommendations.

The chapter’s principal recommendation is that, when applying a “bottom-up” approach to estimating reasonable royalties, courts should replace the Georgia-Pacific factors (and analogous factors used outside the United States) with a smaller list of considerations, specifically:

(1) calculating the incremental value of the invention and dividing it appropriately between the parties;

(2) assessing market evidence, such as comparable licenses; and (3) where feasible and cost-justified, using each of these first two considerations as a “check” on the accuracy of the other.

Publication Title

Patent Remedies and Complex Products: Toward a Global Consensus

Document Type

Book Chapter

Recommended Citation

Thomas F. Cotter, John M. Golden, Oskar Liivak, Brian J. Love, Norman Siebrasse, Masabumi Suzuki, and David O. Taylor, Reasonable RoyaltiesinPATENT REMEDIES AND COMPLEX PRODUCTS: TOWARD A GLOBAL CONSENSUS, (Brad Biddle, Jorge L. Contreras, Brian J. Love, and Norman V. Siebrasse, eds., Cambridge University Press)