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.
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Questions this testimony turns on
- 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.
- Damages for foreign activity. A royalty base that counts sales or use abroad must be tied to infringing conduct in the United States. In Brumfield v. IBG the Federal Circuit affirmed excluding a foreign-activity theory that rested on a misreading of the law.
What the public record shows
Courts have filed at least 15 opinions since 2015 that discuss this class of testimony and cite Daubert or Rule 702, as of October 4, 2026. 7 rulings that show how courts handle this class of testimony:
| Outcome | Case | Court | Year | Why |
|---|---|---|---|---|
| Admitted | Constellation Designs, LLC v. LG Electronics Inc.No. 24-1822 | Fed. Cir. | 2026 | The Federal Circuit affirmed denial of a motion to exclude the patentee's damages expert, who relied on third-party licenses with a built-in apportionment theory, treating the comparability challenge under the Daubert framework after EcoFactor and finding no abuse of discretion. |
| Excluded | EcoFactor, Inc. v. Google LLC137 F.4th 1333 | Fed. Cir. | 2025 | The 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. |
| Excluded | Brumfield v. IBG LLC97 F.4th 854 | Fed. Cir. | 2024 | The Federal Circuit affirmed excluding under Rule 702 the part of a reasonable-royalty opinion that counted foreign users' activity, because it rested on a misreading of the law on extraterritorial damages and did not identify infringing domestic conduct. |
| Excluded | Apple Inc. v. Wi-LAN Inc.25 F.4th 960 | Fed. Cir. | 2022 | The Federal Circuit held that the patentee's damages expert's comparable-license testimony was untethered to the facts of the case and should have been excluded, and that denying a new trial on damages was an abuse of discretion. |
| Excluded | MLC Intellectual Property, LLC v. Micron Technology, Inc.10 F.4th 1358 | Fed. Cir. | 2021 | The 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. |
| Exclusion reversed | Omega Patents, LLC v. CalAmp Corp.13 F.4th 1361 | Fed. Cir. | 2021 | The Federal Circuit held it was an abuse of discretion to bar the accused infringer's damages expert from rebuttal testimony at a retrial, because the earlier Daubert motion had not challenged his qualifications or his critique of the patentee's comparable-license analysis, and ordered a new damages trial. |
| Admitted | Summit 6, LLC v. Samsung Electronics Co., Ltd.802 F.3d 1283 | Fed. Cir. | 2015 | The 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.
In federal court: amended Rule 702
In federal court, 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.
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Updated October 4, 2026. How this page is built: rulings are found by searching court opinions on CourtListener. The summaries are written by AI working from the full text of each opinion, and every citation and link is checked automatically. 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. Spotted an error? Tell us.