Don’t Base Your Damages Theory on a Rule of Thumb, Warns Judge Andrews

December 4, 2021

Courts tend to give patent litigants significant flexibility in crafting a damages theory, with the traditional Georgia-Pacific factors offering a variety of entry points for determining a reasonable royalty. However, as one plaintiff recently learned the hard way, a damages theory must have a sufficient connection to the relevant facts to approximate the results of a hypothetical negotiation between the parties. As recounted by RPX last week, Delaware District Judge Richard G. Andrews threw out the original damages case offered by plaintiff NexStep just before a scheduled trial earlier in the fall, ruling that a proposed 50-50 split of the cost savings with defendant Comcast was improperly based on a “rule of thumb” without sufficient linkage to the facts of the case.

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