Intellectual Property Update: Recent Trends and Approaches in Calculating Patent Damages: Nash Bargaining Solution and Conjoint Surveys
By CHRISTIAN PLATT & BOB CHEN
Following the Federal Circuit’s recent decisions eliminating the 25 percent rule of thumb and limiting the use of the entire market value rule, an increasing number of patentees have attempted to support their reasonable royalty calculations through an economic modeling theory known as the Nash bargaining solution and a method of surveying consumer preferences known as conjoint surveys. Although the use of these methods have met with modest acceptance in district courts, in practice, courts have heavily scrutinized the underlying mechanics of how these methods work and their applicability to the particular facts of an individual case. Accordingly, damage experts must still be careful to tie damage calculations to the specific facts of each case.
Writing in BNA’s Patent, Trademark & Copyright Journal, the authors review a number of recent federal district court decisions discussing the use of the Nash bargaining solution and conjoint surveys and discuss some of the more common challenges to their use.
This article is reproduced with permission from BNA’s Patent, Trademark & Copyright Journal, 86 PTCJ 909, 8/30/13. Copyright 2013 by The Bureau of National Affairs, Inc.