is counsel at Dentons, and with over 12 years of experience as a patent litigator, he is well-versed in all aspects of appellate and trial litigation. Bretscher has participated in more than a dozen appeals to the US Court of Appeals for the Federal Circuit in cases involving the electrical, mechanical, biotechnology, and chemical arts. His in-depth experience spans a wide range of technologies, from semiconductor devices, light emitting diodes, and mass spectrometers to biotechnology and the chemical and pharmaceutical arts.
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While Exmark invites a more flexible approach to apportionment, allowing, at least in some cases, a focus on the royalty rate to value the patented invention, the rate analysis itself must be properly supported. Indeed, Exmark serves as a cautionary reminder that any expert opinions on reasonable royalty damages must be closely tied to the facts of the case. Damages opinions that are purely speculative and unsupported by the facts of the case are likely to be found inadmissible. As a result, apportionment approaches will continue to be case-specific, variously focusing on the royalty base, the royalty rate, or a hybrid-model involving both elements.
The central issue before the Federal Circuit was whether there was a genuine issue of material fact that TSA’s performance of those steps could be attributed to Travel Sentry, such that Travel Sentry could be held singularly responsible for directly infringing Tropp’s method claims. Slip Op. at 13. The district court had answered this question in the negative… The Federal Circuit rejected the district court’s interpretation of divided infringement as too narrow and, accordingly, vacated its summary judgment of non-infringement.