Selecting an Appropriate Damages Expert in a Patent Case; An Examination of the Current Status of Daubert

The determination of damages is a critical part of any patent case. As a plaintiff, maximizing awarded damages, whether financial or injunctive, is the ultimate objective of the patent case. As a defendant, minimizing or preventing any awarded damages is the ultimate objective. Multimillion dollar verdicts in patent cases are now the norm and hundred plus million dollar verdicts are becoming more frequent.

A lawyer who fails to devote sufficient time to this critical component of a case does the client a disservice. There are generally two types of damages in patent cases: lost profits and a reasonable royalty. A patent owner may seek either lost profits or a reasonable royalty, or a combination of both, as long the recoveries do not overlap. The determination of patent damages awarded is a question of fact, and numerous damage theories exist within the broad categories of both lost profits and a reasonable royalty to help answer that question.