Public Standards and Patent Damages, 14 J. Marshall Rev. Intell. Prop. L. 199 (2015)

Some markets require legislation in order to exist. The products and/or services offered by those markets may be covered by one or more letters patent. In certain of those markets, a situation arises in which a private party owns a right to exclude others from participating in that publicly-enabled market. These situations may be referred to “public standards.” Like their cousins in the private sector, public standards require special consideration when it comes to determining potential compensation to the patentee from its competitors.

Following the lead of the Western District of Washington, this paper recommends a modification of the traditional Georgia-Pacific reasonable royalty formulation for a patent damages calculation. Specifically, this paper recommends that calculating damages for public standard patents should require an explicit, thorough consideration of the public interest in addition to the patents themselves and the relationship of the involved parties. Only then will the interests of the public be adequately protected.