Hastings Science and Technology Law Journal


Patricia Dyck


The doctrine of apportionment serves to limit recovery for patent infringement to the economic value contributed by the infringed patent. However, the entire market value rule allows plaintiffs to base their recovery on the entire value of a product, if an infringing feature of the product is the basis for consumer demand for the product. Large damages awards produced by the application of the entire market value rule have prompted appeals for damages reform. In the recent America Invents Act, the legislature did not address damages reform, noting that the judiciary is currently reinvigorating the doctrine of apportionment. Indeed, the Federal Circuit has recently provided such reform by heightening the evidentiary burden for consumer demand, implying that empirical evidence of consumer demand will be necessary in order to apply the entire market value rule. This Note examines issues related to the admissibility and relevancy of empirical evidence of consumer demand, including how such evidence may be used to apportion damages and effect policy.