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77ħ6 See, e.g., Markus Schönknecht, Determination of Patent Damages in Germany, 43 IIC 309, 311–13 (2012) (discussing the German courts’ “free discretion” ( nach freier Überzeugung) to estimate patent damages under § 287 of the Code of Civil Procedure) see also Charlotte Scott, Damages Inquiries and Accounts of Profits in the IPEC, 38 E.I.P.R. patent damages law remains largely underdeveloped. For now, however, this appears to be an area in which U.S. One might imagine, though, that in such cases courts will have to take it upon themselves to apply methodology heuristics akin to those I discuss in a subsequent section below, based on whatever record evidence there may be concerning the amount of the use, comparable license rates, and the advantages of the technology over alternatives.
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The rule is consistent with practice in some other countries, 76 but it provides no guidance on how to calculate the royalty due when the parties’ evidence is deficient. in effect, creating a rebuttable presumption that the patent owner is entitled to something as a consequence of the infringement.
the Federal Circuit interpreted the italicized language to mean that, even when the patent owner fails to introduce admissible evidence quantifying the amount of its loss, the court still has an obligation to “determine what constitutes a reasonable royalty from the record evidence”. Patent Act, for example, states that “pon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer” (emphasis added). Courts sometimes have employed heuristics to help determine if the claimant is eligible to recover a certain class of damages at all.
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