Law360 Publishes Akin Gump Article on Increased Scrutiny of Damage Apportionment in Patent Cases

Law360 has published the article “Overlooked Patent Cases: Scrutiny Of Damage Apportionment,” the latest installment in an ongoing series by Akin Gump lawyers on overlooked patent cases.

In the article, the authors, intellectual property partner Daniel Moffett, counsel Clayton Matheson and associate Dorian Ojemen, examine three patent cases that they say illustrate a growing trend of district court judges giving the “percentage-of-the-product’s-value approach heightened scrutiny and increasingly rejecting it as unreliable under the U.S. Supreme Courts Daubert v. Merrell Dow Pharmaceuticals Inc. decision.” The authors also look at potential alternative approaches that may address courts’ concerns.

As a result of their findings, the authors suggest that parties “consider asking their experts to buttress their proposed apportionments with independent quantitative assessments, whether through the use of customer surveys, step-counting or otherwise.” Instead, they conclude, “parties and damages experts would be well-advised to identify a math-based hook for their apportionment positions.”

To read the article in its entirety, please click here.