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- Title
Innovation Factors for Reasonable Royalties.
- Authors
Sichelman, Ted
- Abstract
Patentees who are successful in litigation are entitled to no less than a "reasonable royalty" for the infringing use of the patent. Currently, reasonable royalties are assessed by the fact-finder using the cumbersome, difficult-to-apply fifteen- factor Georgia Pacific test. The Georgia Pacific test has been widely and roundly criticized, and there is general agreement that it too often hinders patent law's central goal: promoting technological innovation. To improve the reasonable royalty analysis, this article proposes adding innovation-centric factors to the Georgia Pacific test, including the total amount spent on research and development (R & D) and commercialization of the invention, taking into account opportunity costs and project-specific risk. Additionally, the article suggests emphasizing a slightly modified version of one existing innovation-centric, Georgia Pacific factor: the technological benefits offered by the invention when compared to alternative approaches. Like the "objective" factors used to make determinations of whether a patent is obvious, these innovation factors will help fact-finders to make more accurate and more consistent reasonable royalty determinations while more ably advancing patent law's goal of spurring innovation.
- Subjects
UNITED States; PATENT infringement; DAMAGES (Law); PATENT suits; NONPRACTICING entities (Patent law); PATENT law
- Publication
Texas Intellectual Property Law Journal, 2018, Vol 25, Issue 2, p277
- ISSN
1068-1000
- Publication type
Article