Prior unsuccessful attempts to reform the U.S. patent system and rein in massive damages awards have sought to limit damages to the actual economic impact attributable to the claimed invention.  In its most recent bill, the U.S. Senate has shifted its focus from the methodology of the damages analysis, and now seeks to prevent a Plaintiff from presenting a more favorable damages theory absent sufficient evidence to justify its appropriateness. 

 The proposed bill would establish a Daubert like “gatekeeper” role, requiring the district court to exclude unjustified damages theories and evidence.  The proposed bill would mandate that the district courts conduct a thorough hearing on patent damages prior to trial. 

 The bill specifies that “the court shall consider whether one or more of a party’s damages contentions lacks a legally sufficient evidentiary basis” and that “[t]he court shall only permit the introduction of evidence relating to the determination of damages that is relevant to the methodologies and factors that the court determines may be considered in making the damages determination.”  Furthermore, the bill specifically requires that “[t]he court shall identify the methodologies and factors that are relevant to the determination of damages, and the court or jury, shall consider only those methodologies and factors relevant to making such a determination.”  Presumably, such an analysis would be guided by the well established Georgia-Pacific factors.  For a copy of the full version of the current Senate bill, click here.