IP: Federal Circuit Flags the 25 Percent Rule and Penalizes the EMV End Run

The rousing cheer that erupted coast-to-coast on Jan. 4 had nothing to do with a college bowl game. It was actually the patent defense bar heralding the Federal Circuit's recent pronouncement on patent damages in the Uniloc v. Microsoft decision. In Uniloc, the Federal Circuit struck down two "trick plays" that had become part of every plaintiff lawyer's game plan on damages: the 25 percent rule and the Entire Market Value (EMV) End Run. In doing so, the Federal Circuit went a long way towards leveling the playing field in patent cases.

Flagging the 25 Percent Rule

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Mark C. Scarsi

Mark Scarsi is a partner in the Intellectual Property Group of Milbank, Tweed, Hadley & McCloy, LLP, resident in the Los Angeles office.

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