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Patent reasonable-royalty damages expert

Expert class library · Intellectual property · Plaintiff side

Estimates the royalty a willing licensor and licensee would have agreed to in a hypothetical negotiation at the time infringement began. Must apportion the royalty base to the value of the patented feature.

What this expert is retained to answer

  • What royalty would the parties have agreed to in a hypothetical negotiation when infringement began?
  • Which existing licenses are comparable, and what do they actually show about the rate?
  • How should the royalty base be apportioned to the value of the patented feature?
  • How do the Georgia-Pacific factors move the rate up or down?

Methods

  • Georgia-Pacific factor analysis
  • Comparable license analysis
  • Apportionment to the smallest salable unit
  • Income and cost-savings approaches

How the testimony is attacked

  • Licenses that do not support the claimed rate. An expert may not read a per-unit rate into lump-sum licenses that do not contain or reflect it. The en banc Federal Circuit in EcoFactor held such testimony lacked sufficient facts or data and ordered a new damages trial.
  • Failure to apportion. The royalty must reflect only the value of the patented feature, not unpatented ones. MLC affirmed exclusion where neither the comparable-license nor the smallest-salable-unit theory apportioned.
  • Portfolio licenses treated as comparable without adjustment. A license to dozens of patents does not reveal the value of the one in suit. MLC noted the relied-upon agreement covered 41 patents and applications, only one of which was at issue.
  • Undisclosed bases. Theories and documents not timely disclosed can be excluded on that ground alone. MLC also upheld the finding that the patentee failed to disclose its claim that certain licenses reflected a specific rate.
  • Reliance on usage data and third-party surveys. Defendants challenge apportionment methods that correlate feature usage with value. Summit 6 held that approach reliable under Georgia-Pacific factor 11 and left disputes over the inputs to cross-examination.

What the public record shows

A deliberately narrow CourtListener search, "reasonable royalty" AND "Georgia-Pacific" AND apportion* AND (Daubert OR "Rule 702"), returned 15 opinions filed since 2015, as of October 2, 2026; broader searches return more. Three that show how courts handle this class of testimony:

OutcomeCaseCourtWhy
ExcludedEcoFactor, Inc. v. Google LLC137 F.4th 1333Fed. Cir. 2025The en banc Federal Circuit held the trial court abused its discretion by admitting the patentee's expert's opinion that prior lump-sum licenses showed an agreed per-unit rate, because the licenses did not support it, and ordered a new damages trial.
ExcludedMLC Intellectual Property, LLC v. Micron Technology, Inc.10 F.4th 1358Fed. Cir. 2021The court affirmed exclusion of the patentee's expert's royalty opinions because neither his comparable-license theory nor his smallest-salable-unit theory apportioned out unpatented features.
AdmittedSummit 6, LLC v. Samsung Electronics Co., Ltd.802 F.3d 1283Fed. Cir. 2015The court upheld admission of the patentee's damages expert, whose apportionment method tied the value of the claimed feature to how often it was used, leaving challenges to his inputs for cross-examination.

Each case links to the free opinion text on CourtListener.

Under amended Rule 702

Since December 1, 2023, Rule 702 says expressly that the party offering an expert must show the court it is more likely than not that the testimony meets each requirement: that it rests on sufficient facts or data, uses reliable methods, and reflects a reliable application of those methods to the case. Questions about the basis of an opinion are no longer automatically matters of weight for the jury. For how the circuits have applied the amendment, see the Rule 702 tracker, which follows each court of appeals; for what that means for preparing or attacking this class of expert, see the guide on amended Rule 702.

Related classes

  • Defense patent damages expert
  • Patent lost-profits damages expert
  • Technical patent infringement expert

Guides

  • Amended Rule 702 After Nearly Three Years: What Courts Exclude

Simulating this class on a matter

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Last reviewed October 2, 2026. How this page is built: rulings are found by searching court opinions on CourtListener, and each one is read in the opinion before it is summarised here; outcomes are labelled by what the court did with the expert's testimony. No individual expert is named. This page summarises public decisions for orientation and is not legal advice; read the opinion before relying on any ruling.

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