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In
Vectura, the Federal Circuit recently reiterated that the entire market value of an accused multicomponent product may serve as the royalty base if the patent damages analysis is built on sufficiently comparable licenses.
Vectura Limited v. Glaxosmithkline LLC, 981 F.3d 1030, 1040-1042 (Fed. Cir. 2020). Pursuit of the entire market value of a multicomponent product ordinarily requires the patentee to demonstrate that the infringing feature drives customer demand for the product.
Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1326 (Fed. Cir. 2014). Without such evidence, the patentee must apportion down either the royalty base or the royalty rate to account for the difference between the patented features and the conventional features of the accused product.
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Introduction
The authors have recently proposed alternative analyses for the discretionary denial of IPR and PGR petitions involved in parallel district court litigation, as well as for the discretionary denial of serial petitions filed before the Patent Trial and Appeal Board (“PTAB”). The PTAB is also currently at a crossroads with yet a third similar but distinct issue the discretionary denial of
parallel petitions filed before the PTAB. “Serial petitions” refer to multiple successive petitions challenging a particular patent that are filed by the same or different petitioners, whereas “parallel petitions” refer to multiple contemporaneous petitions challenging a particular patent that are filed by the same (or a related) petitioner. Although the PTAB has promulgated an analytical factor-based framework for evaluating the discretionary denial of serial petitions, the PTAB has not done so for parallel petitions. Rather, the Board has simply issued general guidance th