Slicing and Dicing the Patent Damages Royalty Base
Two recent District Court decisions provide IP practitioners with guidance about royalty base in patent damages calculations. Last week, in Inventio AG v. Thyssenkrupp Elevator Americas Corp., et. al., 1-08-cv-00874 (D. Del. Dec. 13, 2013), Judge Andrews denied defendants’ motion for summary judgment and motion to strike that plaintiff improperly calculated damages. The defendants argued that plaintiff’s expert incorrectly included revenue from defendants’ service contracts in the damages calculation. However, the court determined that the expert relied on the service contracts to increase the royalty rate not the base. Thus, the court denied the motion. This case provides support that revenue generated outside of the royalty base can still be used to increase the royalty rate, thus potentially achieving higher damages.