Continuing Infringement Justifies Award of Supplemental Damages

October 28, 2011

ActiveVideo filed a patent infringement action against several Verizon entities asserting that Verizon infringed certain of ActiveVideo's patents. After a three week jury trial, the jury found that Verizon infringed asserted claims of four of the patents and awarded ActiveVideo $115,000,000 in damages. After the verdict, ActiveVideo sought an award of prejudgment infringement, post-judgment interest and post-discovery damages for the continuing infringement. Verizon opposed the motion.

In addressing the issue of damages for continuing infringement, the district court stated that "[w]here a patent infringer is found to have infringed one or more patents, the 'patentee is entitled to damages for the entire period of infringement and should therefore be awarded supplemental damages for any period of infringement not covered by the jury verdict'" (citations omitted). ActiveVideo asserted that it was entitled to an award of supplemental damages because the discovery provided by Verizon only accounted for information through March 2011 and did not address the period from April 2011 to August 2011 when the jury returned its verdict. Verizon opposed the motion by contending that ActiveVideo waived any entitled to the supplemental damages because it failed to request them in the amended complaint or in the final pre-trial conference order.

The district court disagreed with Verizon's position. It found that there was no waiver of supplemental damages because courts have held that the failure to include a separate request for "supplemental" damages does not result in waiver because such damages are a component of any request for compensatory damages. The district court found that ActiveVideo had requested compensatory damages in its first amended complaint and in the final pretrial order. "Thus, the Court finds that ActiveVideo has not waived its request for supplemental damages in this case."

The district court also noted that "courts have found that such supplemental damages may take into account pre-verdict infringing sales that were not covered by the jury verdict due to deficiencies in the discovery production." Therefore, the district court found that an award of supplemental damages was appropriate.

The district court next turned to an appropriate measure of those supplemental damages. To determine this number, the district court looked at Verizon's actual subscriber numbers for the months of April through July 2011 as well as projections for the first few days of August 2011. As a result, the district court award over $17M in supplemental damages.


Activevideo Networks, Inc. v. Verizon Communications, Inc., Case No. 2:10cv248 (E.D. Va. Oct. 4, 2011)

The authors of www.PatentLawyerBlog.com are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or SGibson@jmbm.com.