Proving Patent Damages: A Practitioner's Guide to Royalty Models, Apportionment, and Enhanced Damages
By Casey Scott McKay ·
This guide runs a patent damages case from the first month to the post-verdict royalty, from both sides. It starts with the three analyses that fix the length of the damages period — marking, notice, and the six-year limitation — because they decide more money than any expert dispute. It then covers financial discovery and what to request, the choice between lost profits and a reasonable royalty, the substitutes analysis that decides it, the royalty base fight and the apportionment evidence that resolves it, license collection and comparability, the expert engagement and report, exclusion motions, willfulness and enhancement, and the ongoing royalty that follows a denied injunction. Each stage gives the deliverable and the failure mode.
IP and Technology > Patent Litigation | Guide | Published 9 June 2024 - Updated 20 January 2025 | Casey Scott McKay - marksy.us
Summary. This guide runs a patent damages case from the first month to the post-verdict royalty, from both sides. It starts with the three analyses that fix the length of the damages period — marking, notice, and the six-year limitation — because they decide more money than any expert dispute. It then covers financial discovery and what to request, the choice between lost profits and a reasonable royalty, the substitutes analysis that decides it, the royalty base fight and the apportionment evidence that resolves it, license collection and comparability, the expert engagement and report, exclusion motions, willfulness and enhancement, and the ongoing royalty that follows a denied injunction. Each stage gives the deliverable and the failure mode.
Keywords: patent damages proof, marking analysis, actual notice, damages period, royalty base, smallest salable unit, entire market value rule, apportionment evidence, comparable licenses, hypothetical negotiation, lost profits, non-infringing substitutes, incremental profit, price erosion, financial discovery, damages expert report, Daubert motion, willfulness, enhanced damages, ongoing royalty
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