Exmark v. Briggs & Stratton: The Federal Circuit Addresses the Permissible Scope of Expert Testimony on Damages — “Mower” or Less

In a recent decision, Exmark Mfg. Co. v. Briggs & Stratton Power Prods. Grp., LLC, 879 F.3d 1332 (Fed. Cir. 2018), the Court of Appeals for the Federal Circuit appears to have created a distinction in regard to expert testimony that, if it holds in future cases, could benefit patent owners.  Specifically, it could be of benefit to those patent owners lucky enough to be litigating, or savvy enough to have drafted, patent claims that are written so as to cover an entire commercial product to which an incremental improvement has been made to a component, rather than written to cover merely that improved component. Exmark addressed patent damages in the form of a “reasonable royalty.”  In those (frequent) instances in which a patent owner cannot prove that infringement caused it to lose profits — such as where the patent owner is a “non-practicing entity” (NPE) that owns a patent but does not sell a patented product — the patent…

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