Patent Damages Are Won or Lost on Apportionment

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.

What an Economic Damages Expert Actually Does — And Why It Matters in Court

Every litigator knows the moment a case stops being about facts and starts being about numbers. Revenue. Costs. Profits. Causation. Apportionment. Reasonable certainty. Every-dollar-counts territory.

And when that happens, the strongest weapon in the trial toolkit is an economic damages expert who can turn financial complexity into something a trier of fact can actually use.

Most jurors don’t connect with spreadsheets. They connect with clarity – with a narrative rooted in logic, supported by data, and consistent with how real businesses operate. A seasoned economic damages expert doesn’t just calculate losses. They decode the financial mechanics of the dispute and explain them in a way that feels inevitable, not theoretical.

That matters far more than most people realize.

Because in high-stakes litigation, the damages story is the case.

Was revenue recognized properly? Were deductions reasonable? Did the defendant’s conduct actually cause the economic impact claimed? How do industry norms shape what’s “reasonable”? And what assumptions will collapse under cross?

These are the questions that shape settlement posture, discovery priorities, deposition outlines, trial themes, and even the confidence level in the courtroom.

An effective economic damages expert helps the trial team see the case through a financial lens that aligns with how judges and juries process information. We identify what matters, what doesn’t, and what will withstand pressure from opposing experts. And we do it early enough that the analysis becomes part of the trial strategy rather than a reaction to it.

At my forensic accounting firm Boschan Corp., this is the work we do every day: translating complex financial records – royalty statements, IP participation contracts, licensing data, entertainment revenue models, and industry-specific deal structures – into damages analyses that make sense in real-world terms.

If your case touches profits, royalties, licensing, intellectual property, revenue sharing, or the economics of entertainment and media, partnering with an economic damages expert who understands how money actually moves can change the trajectory of the entire matter.

Not because we “sell” the numbers.

Because we make the numbers make sense.