The University of New Hampshire Law Review
All inventors should be compensated for the value of their contributions. Inventors contribute both to the patent system and to the technology commercialization process by providing access to a qualifying disclosure describing a qualifying idea. Yet today, a schism divides the patent world and the commercial world over the value of these inventive contributions. Unlike the commercial world, the patent world pays inventors for the contributions of noninventor technology commercialization roles. In particular, seminal reasonable royalty cases like Georgia-Pacific and TWM Manufacturing allow patentees to recover infringer profits and proxies thereof—in violation of congressional mandate and the Supreme Court’s opinion in Aro Manufacturing. These cases perpetuate the schism and contribute to the patent system’s most consequential policy issues. Courts can close the schism and address these policy issues by removing measurement errors in reasonable royalty calculations. Instead of “indirectly” measuring compensatory damages based on the value of the infringer’s implementation, courts should set reasonable royalties based on “direct” measurements of the inventor’s contribution. Unlike indirect measurements, direct measurements ensure compliance with Aro Manufacturing. By adopting direct measurement techniques, courts can help all inventors receive compensation for the value of their contributions.
Christopher S. Storm, Measuring the Inventor's Contribution, 21 U.N.H. L. Rev. 167 (2022).