We just got a new associate in my office. This does not happen often. Her name is Christina. Which means that I am no longer the only skirt in the sausage fest. And of course, we have confusingly similar names. I call her mini-me. She doesn’t have a patent law background, but she is supposed to start learning the law in this area and helping on doc reviews and stuff like that. And it is my job to teach her. I have a feeling that molding a young legal mind and career will yield much poker email material. And you get a lot of perspective on things when you have to explain them to someone who doesn’t just take them for granted. Lesson #1. Patent Damages.
Me: The first thing you need to learn is the Georgia-Pacific factors for a reasonable royalty.
Mini-me: How many factors are there?
Mini-me: That can’t be right. Legal tests are, like, four factors. Who makes a fifteen-factor test?
Me: Actually it was just dicta from a random judge in New York, and it somehow became the law.
Mini-me: So these fifteen factors tell you what a reasonable royalty should be?
Me: Um, no. You have to determine the reasonable royalty before you apply the factors, using objective evidence.
Mini-me: So what to the Georgia-Pacific factors tell you?
Me: Um, not really anything. You just have to pay your expert $600 an hour to write a 200 page report, talk about them for a couple hours in trial, and analyze whether each one of them adjusts the royalty rate upwards or downwards.
Mini-me: So you could start with a royalty based on past licenses, and then adjust it upwards 15 times?
Me: Oh, no, if you did that, it would mean that the licenses you used as starting points were not comparable. You have to use comparable licenses as the starting point.
Mini-me: Oh, so it is a check to see whether your proposed royalty is reasonable, that makes sense.
Me: No, that’s not it at all, you have to prove a reasonable royalty with evidence independently of the GP factors. GP just adjusts the royalty. Most of the time at least half the factors are neutral, and the remaining ones cancel each other out, so you maybe only have one that indicates any adjustment.
Mini-me: Then how much do you adjust it?
Me: It doesn’t tell you that.
Mini-me: Then why apply this test? It sounds like a huge, expensive waste of time and doesn’t tell you anything helpful. And when it actually does something, it implies that you did it wrong.
Me: Oh you have to apply it. Even to just list the factors and say they do nothing, you can’t not have a Georgia-Pacific analysis, your expert will lack all credibility and his testimony will probably be inadmissible.
Mini-me: So it is a test you have to use, and it has to be completely gratuitous.
Me: Yes. And it’s fifteen factors long.* Welcome to patent law!
Georgia-Pokesific’s 15-factor poker will start at 8pm, at [———]. You must first tie each bet to the evidence of the hand, and then you must use a 15-factor analysis to explain whether to raise. I expect each hand will take about an hour. So the normal pace. Bring $10 and some craft beer. That’s what all the kids are drinking these days. RSVP! It’s free and not a total waste of time like, well, you know.
* The most of any legal test (by two; runner-up is the 13 Dupont factors for trademark infringement).