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Judge Posner Consolidates Multiple Defendants Sued in Separate Actions and Raises Questions Whether Plaintiffs, if Successful in Establishing Liability, Will Be Entitled to Non-Trivial Damages

As a preliminary matter, Judge Posner consolidated the six patent cases that were filed by Brandeis University against various defendants, finding that they involve a number of common issues of law and that judicial efficiency would be maximized by consolidation. “These six cases are hereby consolidated under 1:12-cv-01508, pursuant to Fed. P. 42(a). The parties agree that they involve a number of common issues of law, and I believe that judicial efficiency will be maximized by consolidation. I will consider in due course the defendants’ request for separate trials of issues, particularly damages, that vary significantly across the six cases.”

After consolidating the cases, Judge Posner expressed concern regarding the damages that plaintiffs might be able to recover if they succeeded in proving liability. “I am concerned whether the plaintiffs if successful in establishing liability will be entitled to nontrivial damages awards. Suppose the defendants infringed the asserted patents but that none of the defendants marketed its products as low in bad cholesterol (LDL) or high in HDL, or as having a high ratio of HDL to LDL; and suppose further that the defendants obtained no cost savings by infringing the patents rather than using some non-infringing recipe and that neither Brandeis nor its licensee GFA Brands lost any business as a result of the infringement. On those assumptions, would the plaintiffs have any claim for damages, whether compensatory or punitive, or restitution? I would like the parties to address this question in briefs filed simultaneously by close of business on April 2.”

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The question posed by Judge Posner is an interesting one: what happens if there are likely no lost profits suffered by the plaintiff and the defendants did not gain anything by using the infringing method and non-infringing substitutes are available? The Patent Act provides that the patent holder shall be entitled to compensation of not less than a reasonable royalty, but what and how should such a reasonable royalty be calculated in facts such as these. We can expect that the plaintiff and the defendants will present very different view points on this issue and any orders from Judge Posner on this subject will be worth watching closely.

Brandeis University and GFA Brands, Inc. v. East Side Ovens Inc., et al., Case No. 1:12-cv-01508 (N.D. Ill. March 16, 2012)

February 29, 2012: Brandeis University’s Patent Infringement Case Over Cookies Crumbles Against Multiple Defendants and the Court Transfers All the Crums to Another District

The authors of 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