Recently, we noted that one of the most contentious provisions of the proposed patent reform act pertained to the manner in which damages would be determined. At one point, the proposed senate bill would have required that a “reasonable royalty” be applied “only to the portion of the economic value of the infringing product or process properly attributable to the claimed invention’s specific contribution over the prior art.” As we pointed out previously, the courts are already doing this.
Now, after much self-serving testimony from both sides of this controversy, the Senate Judiciary Committee has changed tacks and now advocates a so-called “gate keeper” function for the court (meaning the judge) to determine whether damages theories and contentions offered by the “damages experts” are “legally sufficient” before they are presented to the jury. This sounds a lot like the Daubert Rule, whereunder the court examines the technical theories and contentions of “technical experts” and determines their sufficiency before they are presented to the jury. (You gotta love the Judiciary Committee – they recycle.)
As we also pointed out previously, the courts are already doing this.
THE LESSON TO BE LEARNED: The more things change, the more they stay the same. Most new laws are not revolutionary – at best, they are evolutionary.