I have a suggestion for making the “damage” provision palatable: codify the 15 Georgia-Pacific factors and be done with it. Georgia-Pacific recognizes that each damage case is different and unique, and may require application of different sets of these factors. Also, you won’t have as much difficulty hitting equilibrium in the case law as these factors already have quite bit of case law to provide guidance on these factors, and how to use them. By contrast, the proposed damages provision, being completely new, will require much longer to reach that equilibrium. I see no point in “reinventing” the standard where there’s a good one already in place in the case law; codifying that standard will simply confirm that.

If Congress, in it’s usual infinite unwisdom, wants to do something about damages, why don’t you start with the leading case (Georgia-Pacific) which has been accepted by all courts (including the Federal Circuit) as setting forth the best test (or at least best set of factors) for determining damages. The current damage provision proposed isn’t even close. And if Congress wants to ignore the Georgia-Pacific factors, and put in this new nonsensical (and frankly nebulous) provision on damages, then by all means let this oxymoronic “patent law reform” legislation sink with no survivors.