Rethinking the standard for ascertaining the quantum of disgorgement in patent law contexts

This article makes a case for the adoption of the "differential approach" over the "apportionment approach" as the proper criterion of determining the quantum of profits to be disgorged in patent enforcement. Its thesis is that the differential approach is more suitable to the peculiarities of the patent system simply because it accords with the utilitarian nature of the system. The novelty of this article lies in its suggestion that incremental benefits derived from patent infringement should be determined against the utilities or economic advantages enabled by the prior art before the infringed patent was issued.