is a Partner in Denton‘s Washington DC office. He has more than nineteen years of experience in complex, high-stakes litigation, including numerous trials and appeals. His practice focuses on successfully asserting and defending claims involving trade secrets, patents, trademarks, and other intellectual property. He has tried, litigated, arbitrated, and settled cases throughout the country, including for clients operating in aerospace and defense, consumer products, VoIP and telecommunications, internet technologies, banking and financial services, franchising, real estate, medical devices, and other industries.
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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.