The requirement is that recovery reflect the value of what was patented. Meeting it is an evidence problem long before it is a calculation.
Start a conversation with the IP Concierge, already scoped to apportionment evidence. Pick a starting point, or describe the matter directly.
Modern products contain thousands of separately patentable features, and a claim to one of them is not a claim to the product. Apportionment is the requirement that damages reflect the value attributable to the patented contribution rather than to everything shipped alongside it, and while economists perform the final allocation, the material they need is technical. Which components actually practice the claim. What the accused functionality does for the product and for the customer. Whether the patented feature drives demand or is one of hundreds of things the product happens to do. Choosing a royalty base is where this becomes concrete, and the choice has to be defensible on a causal basis rather than a practical one — a base selected because the revenue figure was readily available is the classic invitation to exclusion.
The technical showings that make an economic apportionment sustainable.
The component, module or process step containing the claimed limitations, identified concretely.
Where a component is separately sold, it is the usual starting point for the base rather than the finished product.
Why the chosen metric moves with the accused functionality, established rather than assumed.
Survey, conjoint, usage and marketing evidence about whether customers value the feature.
The other features, brand, distribution and integration that also explain the product’s value.
Using whole-product revenue requires showing the patented feature drives demand for the whole product — a demanding standard, rarely met.
The technical work that supports apportionment.
The size of the case, and whether the opinion survives.
Total product revenue is easy to find and hard to justify. Where the accused functionality is one feature among many, using whole-product revenue invites both a challenge to the base and the argument that the jury was anchored to a figure it should never have heard. Pick the base the evidence supports, then explain the causal link.
Yes, but the showing required is demanding and infrequently met. The entire market value approach generally requires evidence that the patented feature drives demand for the entire product — not that it is important, useful, or a selling point among others, but that it is why customers buy. For a component in a complex product, that is a high bar. Where it cannot be met, the analysis works from a narrower base and explains why.
That is the common case in integrated products, and it does not remove the requirement — it means apportionment has to be built from evidence other than a component price. Engineering cost allocation, development effort, usage data, feature-level demand research and the value of non-infringing alternatives all contribute. The analysis is harder and entirely doable; what is not doable is treating the absence of a component price as license to use the whole product.
It can be genuinely valuable and it is a target. Well-designed conjoint studies can isolate what customers will pay for a specific feature, which is directly on point. Poorly designed ones — leading attribute descriptions, unrealistic feature sets, unrepresentative respondents — are attacked on their design rather than their conclusions, and a study that does not survive that attack is worse than no study, because it becomes the story of the damages case.
The doctrine developed in patent law and the underlying logic travels, though the framing differs. Where a defendant’s product or profit stream reflects far more than the misappropriated information, tying recovery to the contribution of what was actually taken is both a live dispute and a matter of practical persuasion. The measures available in trade secret cases differ from the patent measures, and which apply belongs to counsel and to our Economic Damages Institute.
Describe the product and the accused functionality. The Institute will help you see what apportionment needs.