Patent Damages on Trial: Rule 702 and the Daubert Conundrum

This week on IPWatchdog Unleashed, we have a special episode moderated by Megan Carpenter, which took place during the IPWatchdog Patent Masters conference last month.  IPWatchdog founder, Gene Quinn, joins along with economist Jon Putnam, and patent litigators Glenn Forbis, and Mark Nelson. The crew examines how the 2023 amendments to Federal Rule of Evidence 702—and the Federal Circuit’s increasingly rigorous review of expert testimony—are changing the way patent damages must be developed, defended, and challenged.

The conversation explores why heightened scrutiny does not necessarily favor defendants, how the line between admissibility and weight remains highly judge-dependent, and what recent disputes reveal about apportionment, license comparability, causation, and the limits of scientific proof in the damages context. The panel also revisits the demise of the 25-percent rule and considers the tension between demanding economic rigor and recognizing that a reasonable royalty for a showing of infringement logically cannot begin at zero.

The practical takeaway is clear: damages strategy cannot wait until expert reports are due. Patent owners and accused infringers alike need to engage damages experts early, pursue discovery in deliberate waves, connect technical value to economic outcomes, and build alternative theories capable of surviving Daubert scrutiny. The discussion offers a sophisticated roadmap for integrating liability, discovery, economics, and trial strategy from the beginning of the case.

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