Uniloc v. Microsoft: What Lawyers are Saying

For your reference: what lawyers and law firms on JD Supra are writing about the January 4th, 2011, decision in Uniloc v. Microsoft:

Uniloc v. Microsoft: Federal Circuit Confirms Necessity Of Tying Damages Theory To Facts Of The Case (by Wilson Sonsini):

“The Federal Circuit’s January 4, 2011, ruling in Uniloc USA Inc. v.
Microsoft Corp. is a significant decision regarding damages recovery
in patent infringement claims. The Uniloc holding abolished the “25
percent rule”–a methodology sometimes used to calculate reasonable
royalty for infringement damages–as a “fundamentally flawed tool for
determining a baseline royalty rate in a hypothetical negotiation.”
And, in keeping with the recent trend of denying overly broad
applications of the “entire value market rule,” the Federal Circuit
rejected the methodology used by Uniloc’s expert because the patented
invention did not drive consumer demand for the accused products.

In short, Uniloc v. Microsoft signals that to prevail on a damages
claim, the patentee must carefully lay a factual foundation that
establishes the relevance of any analytical tool used by the patentee’s
expert to the facts of the case–the patents in suit, the products, and
the parties…” Read more>>

What Kind of Bag Holds a $19B Cat? Uniloc v. Microsoft: Federal Circuit Rules on Reasonable Royalty Damages Issues (by Fenwick & West):

“Eliminated the criticized 25% “rule of thumb” frequently used as a baseline for determining reasonable royalty damages, and … It clarified that evidence of entire market value calculations–where the plaintiff attempts to tie the reasonable royalty
to the full value of a product containing the patented invention–will
not be permitted in absence of clear economic justifications…” Read more>>

CAFC in Patent Damages Case: “25% Rule” is Fundamentally Flawed (by Gary Colby):

“In the decision, the Panel rejected use of the ‘25% Rule’ as a basis
for expert testimony relating to estimating damages in a patent
infringement case. The Panel held that, at least without sound
reasoning for applying the 25% Rule to the specific facts of a patent
dispute, expert testimony applying that rule lacks sufficient relevance
to be admissible under the US Supreme Court’s Daubert test for
admissibility…” Read more>>

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