Abstract

Inspired by the unpredictability of patent value apportionment in
complex technologies and the thicket of mobile patent litigation, this article analyzes the entire market value rule. When applicable, the rule allows infringement damages to be based on market value of the infringing product, which includes both infringing and non-infringing features. Considering the convergence of multiple complex technologies in a single device, such a rule could result in unfair damage awards. Advancing a study of the Apple iPhone 4, a device that is the subject of significant and varied patent litigation, this article argues that consumers will ultimately suffer because patentee overcompensation is a realistic possibility in light of current Federal Circuit jurisprudence. To address resulting overcompensation issues, this article explores statistical methods in an effort to produce more reliable damage base determinations. The article concludes by making suggestions to give the rule more teeth, and suggests that while patent value apportionment is difficult, it is not impossible.