Experts, Rule 702 and the Future of Patent Damages

Experts, Rule 702 and the Future of Patent Damages

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Recent changes to Federal Rule of Evidence 702—and the Federal Circuit’s increasingly rigorous application of scientific standards to expert testimony—are reshaping how patent damages must be proven in court. As judges apply more demanding scrutiny to the reliability of economic opinions, the traditional divide between legal argument and expert analysis is narrowing. Both plaintiffs and defendants must now engage more deeply with the economic methods underlying damages models, because it is no longer sufficient to challenge or defend expert testimony using purely legal arguments. Courts are increasingly focused on whether damages opinions are grounded in sound economic reasoning that meets accepted scientific standards.

These developments also highlight a longstanding but often overlooked distinction between economics and accounting. While accounting records document “what was,” patent damages analysis requires answering a fundamentally different question: what would have happened in the but-for world absent infringement. As the Federal Circuit explained in Grain Processing Corp. v. American Maize–Products Co., courts require “sound economic proof of the nature of the market and likely outcomes with infringement factored out of the economic picture.” Addressing these counterfactual questions requires economic tools—such as comparative analysis of market outcomes—that are central to economic science but often underutilized in patent litigation.

The heightened focus on scientific rigor has implications beyond expert reports. It affects discovery strategy, evidentiary disputes, and the procedural handling of damages issues. Defendants frequently possess information about non-infringing market outcomes that may serve as important comparators for economic analysis, yet courts often limit discovery to the accused products or acts. At the same time, once a party presents a prima facie damages opinion supported by accepted economic methodology, rebuttal may increasingly require competing scientific evidence rather than purely legal critique or appeals to “common sense.”

This panel will examine how evolving Rule 702 standards are changing the role of economic experts in patent litigation. Panelists will discuss practical implications for litigators, including how to evaluate damages theories grounded in economic science, how to prepare experts for Daubert scrutiny, and how courts are approaching issues such as causation, apportionment, license comparability, but-for pricing, and returns to research and development. Through discussion of recent cases and real-world litigation experience, the panel will provide practitioners with a clearer understanding of how economic analysis can strengthen—or undermine—patent damages claims in today’s courtroom.

Materials

Old Method, New Applications in Damages Calculations

Split En Banc CAFC Says Google Gets a New Trial on Damages

UK Court of Appeal Bumps Apple FRAND Payment to Optis Up to $502 Million

How Recent Patent Damages Precedent May Increase Reasonable Royalty Awards