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The extent to which certain apportionment principles, such as
the entire market value rule and related doctrines, may constrain
damages theories in patent infringement cases remains uncertain.
This article reviews the current state of apportionment law through
the lens of semiconductors and electronic components-ideal
archetypes for such issues-and proposes a framework to help
reconcile governing precedents that, at times, seem to
conflict.
Introduction
We often define the state of human civilization by the materials
we use to make tools-the Stone Age, Bronze Age, Iron Age, and so
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In 2018, the U.S. Supreme Court held that a plaintiff was entitled to lost foreign profits under 35 U.S.C. § 284 based on direct acts of infringement in the United States under 35 U.S.C. § 271(f)(2).
WesternGeco LLC v. ION Geophysical Corp., 138 S.Ct. 2129 (2018) (
WesternGeco). The question is: Did
WesternGeco effectively overrule the Federal Circuit’s decision in
Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 711 F.3d 1348 (Fed. Cir. 2013) (
Power CAFC), which held that a patent owner cannot recover foreign lost profit damages for direct infringement under Section 271(a), even if the direct infringement occurred in the United States?