Trial attorneys searching for a patent damages expert often discover that apportionment - not infringement - determines the outcome.
Apportionment is where many patent damages analyses quietly fail. Not because the math is difficult, but because the expert misunderstands what courts actually expect when value must be separated, justified, and defended under pressure.
Apportionment is not a mechanical exercise. It is a legal, economic, and evidentiary discipline. When done poorly, it collapses damages. When done correctly, it survives Daubert and gives counsel leverage.
Apportionment Is Not a Formula. It Is a Theory of Value.
Too many analyses treat apportionment as a plug-in adjustment.
A percentage applied late.
A heuristic borrowed from comparables.
A shortcut disguised as rigor.
Courts reject this approach for a reason.
Apportionment requires a coherent value narrative that explains why the patented technology - and not the surrounding ecosystem, distribution, branding, or unrelated features - drives the claimed economic benefit.
That narrative must be grounded in:
- technical contribution
- economic substitution
- customer demand drivers
- real-world revenue mechanics
If the expert cannot explain apportionment clearly, simply, and persuasively, the damages number will not stand.
Why Apportionment Fails Under Cross-Examination
In depositions and at trial, weak apportionment collapses quickly. Typical pressure points include:
- reliance on industry rules of thumb
- circular reasoning between royalty base and rate
- failure to isolate incremental value
- unsupported reliance on licenses that do not reflect comparable technology
Once credibility cracks, the entire damages model becomes suspect.
Trial attorneys know this. Opposing experts exploit it relentlessly.
What Sophisticated Courts Expect From a Patent Damages Expert
Courts are not hostile to damages. They are hostile to unsupported damages.
A defensible apportionment analysis demonstrates:
- disciplined separation of patented and unpatented value
- consistency between technical evidence and economic conclusions
- transparency in assumptions
- restraint rather than overreach
The strongest damages opinions often appear conservative at first glance - until the opposing expert is dismantled.
That is how cases are won.
Why Apportionment Determines Settlement Leverage
Damages do not just affect verdicts. They affect settlement dynamics.
When opposing counsel knows your damages theory is internally consistent, well-supported, and trial-ready, negotiations change tone. Risk becomes asymmetric.
Apportionment is leverage.
Choosing the Right Patent Damages Expert
Not every financial expert is equipped to handle patent damages. And not every patent damages expert is equipped to handle apportionment.
Look for someone like yours truly who:
- understands how judges actually analyze damages opinions
- has defended apportionment under deposition and cross
- can explain complex valuation concepts without losing authority
- treats damages as litigation strategy, not just calculation
This is not about producing a large number. It is about producing a number that survives.
Final Thought
In patent litigation, infringement opens the door.
Apportionment decides the outcome.
Trial attorneys searching for a patent damages expert are not looking for spreadsheets. They are looking for a patent damages expert whose work holds up under Daubert, cross-examination, and real courtroom conditions.
