Damages: “Built-In” Apportionment Using Comparable License Agreements

September 2022

The Licensing Journal

Calculating patent damages is “not an exact science.” This is especially true when addressing principles of apportionment. The principle of apportionment seeks to ensure that the patent holder does not obtain an unfair benefit by receiving value for features of the infringing product that are not covered by the asserted patent. It does so by requiring that the patentee “apportion” the damages between the patented feature and all other non-patented features. But determining how to apportion, especially when there is evidence of comparable license agreements, requires careful analysis.

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*Kathleen Hanley is a law clerk at Finnegan

Reprinted with permission from The Licensing Journal, published by Wolters Kluwer. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm’s clients.