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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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Patent litigation, the Sport of Kings, does not come cheap, especially when the litigation transmogrifies into a multi-jurisdictional slugfest. When managing a global patent fight, it is important to keep the big picture in mind and understand when continued fighting makes sense and when it does not. One rough and ready tool is to compare the ratio between the current royalty demands and the anticipated litigation costs in one’s case to other historical litigations. Comparing such ratios can help one understand whether return on investment in the litigation makes sense in terms of hoped-for royalty savings. Such information can inform the parties when it makes sense to settle.