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Abstract

This Note addresses the diverging approaches to patent infringement damage calculations. Judge Alsup of the Ninth Circuit recently took a rare approach and selected Dr. James Kearl to testify as an independent damages expert in Oracle v. Google under Rule 706 of the Federal Rules of Civil Procedure. In contrast, Judge Posner of the Seventh Circuit recently dismissed the Apple v. Motorola lawsuit finding each party failed to present adequate evidence of their respective damages claims. Judge Koh of the Ninth Circuit took yet another approach using a more relaxed level of admissibility for expert testimony relating to infringement damage calculations. This Note analyzes all three approaches in the context of the suits at issue and proposes that Judge Alsup’s approach is the best, for numerous reasons.

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