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Apportionment Law (Sec. 4)

When determining damages in a patent infringement case, require the court to conduct an analysis to ensure that infringers' idea of a reasonable royalty is applied only to the "economic value" attributed to the patentee's specific improvement over the art. This change requires the court to identify factors relevant to the determination in ways which underestimate the true value and then limits court's and/or jury's consideration to only those factors.

Finally, the patent owner has the burden to establish that entire market value rule is appropriate in the particular case.

The PIA Viewpoint

Georgia-Pacific created a multi factor test which includes the issue of apportionment which provides courts with suitable and equitable guidance to determine reasonable royalty rates. PIAUSA believes royalty should be determined based the facts of each case.

By seeking to limit damages to the portion of the total value of the innovation in question, this provision will allow willful infringers to buy their way out of trouble for one percent or less of what is currently the case. The curtailing effect on infringement through damages due to the inventor would be substantially decreased; enabling large corporations to obtain the use of the patent through this new form of compulsory licensing that will have a very harmful effect on small businesses.