Calculating patent damages can be a costly and difficult process for litigants. Because of the requirement that damages not fall below a reasonable royalty, there has been substantial focus on how to determine what a reasonable royalty is. This article examines the history of the doctrine and the policies underlying its existence. Due to conflicting strains of the doctrine which serve distinct but separate policy goals, the article proposes that federal judges separate the two strains into distinct and independent bases for recovery. By doing this the courts will be able to expand and refine the two fundamentally different theories without needing to reconcile contradictory public-policy purposes.
Adam Friedman, Damages Control: Returning Royalties to Their Reasonable Roots, 15 J. Marshall Rev. Intell. Prop. L. 827 (2016)