The law of restitution suggests multiple ways to improve reasonable royalty analysis in patent law. Restitution law has substantial experience in addressing issues that also appear in the assessment of reasonable royalties. These issues include problems of reasonably apportioning value among multiple contributions to an overall activity or outcome, assigning burdens of production and proof with respect to valuation and apportionment, and assuring consistency of remedies with statutory law or other expressions of public policy. In contrast with the often relatively blunderbuss approach of patent law, the law of restitution has responded to such problems in at least three context-sensitive ways: (1) by developing an array of alternative measures for monetary relief, (2) by tying deployment of these measures to similarly reticulated classifications of parties’ relative responsibility, and (3) by showing sensitivity to practicalities of proof and background policy concerns. This Article suggests that, in relation to reasonable royalties, patent law can learn much from the law of restitution’s comparatively precise yet flexible approach.
Golden, John M and Sandrik, Karen, A Restitution Perspective on Reasonable Royalties (December 1, 2017). 36 Review of Litigation 335 (2017).