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Resolving Bargaining Range Indeterminacy in Patent Damages AfterVirnetX

In: The Law and Economics of Patent Damages, Antitrust, and Legal Process

Author

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  • Rebbecca Reed-Arthurs
  • Michael P. Akemann
  • David J. Teece

Abstract

Recent US federal court rulings have provided new guidance on the use of economic models of bargaining in estimating reasonable royalty damages in patent cases. After reviewing relevant case law and providing an overview of the bargaining range approach, we describe one analytic method (the Rubinstein Bargaining Model) for developing a quantitative starting point with which to divide a bargaining range and explain how it can be tied, at least in part, to the facts and circumstances of the parties around the time of the Hypothetical Negotiation. We also describe how this approach can be used in conjunction with an analysis of other quantitative and qualitative factors related to the bargaining power of the parties, to help estimate reasonable royalty damages.

Suggested Citation

  • Rebbecca Reed-Arthurs & Michael P. Akemann & David J. Teece, 2021. "Resolving Bargaining Range Indeterminacy in Patent Damages AfterVirnetX," Research in Law and Economics, in: The Law and Economics of Patent Damages, Antitrust, and Legal Process, volume 29, pages 7-26, Emerald Group Publishing Limited.
    • Handle: RePEc:eme:rlwezz:s0193-589520210000029002
    DOI: 10.1108/S0193-589520210000029002
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    More about this item

    Keywords

    Patent damages; royalties; Rubinstein bargaining model; bargaining range; VirtnetX; Georgia-Pacific; K29; K41; O34;
    All these keywords.

    JEL classification:

    • K29 - Law and Economics - - Regulation and Business Law - - - Other
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
    • O34 - Economic Development, Innovation, Technological Change, and Growth - - Innovation; Research and Development; Technological Change; Intellectual Property Rights - - - Intellectual Property and Intellectual Capital

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