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District Court Declines to Award Supplemental Damages for Pre-Verdict Damages Even Though Defendant Did Not Produce All of Its Financial Documents

After a jury trial in which TransPerfect was awarded damages, TransPerfect moved for an award of supplemental damages under 35 U.S.C. § 284 on the theory that the jury did not award it damages for infringement that occurred after December 31, 2011. TransPerfect contended that the jury’s damage award of $1,006,002 failed to account for its post-2011 damages because the defendant, MotionPoint, failed to produce any financial records later than 2011.

TransPerfect contended that the parties’ experts were therefore unable to examine any post-2011 financial information and the jury could not have included these damages in its verdict.

The district court noted that TransPerfect “apparently did not move to compel the financial information necessary to calculate the post-2011 damages; therefore, if the jury was not presented with all of the necessary evidence, the fault does not lie exclusively with MotionPoint.”

Although TransPerfect’s expert purported to reserve the right to seek post-2011 damages after trial, “TransPerfect’s attempts to reserve these rights do not empower it to take the question of damages from the jury. Damages are part of a trial by jury. If TransPerfect wished to bifurcate a portion of its damages for a separate, later trial, it would have had to ask the Court to do so, or reached an agreement to that effect with MotionPoint. Or TransPerfect could have sought to ask the jury to extrapolate post-2012 damages from the pre-2012 financial records and analysis.”

In addition, the district concluded that “it is not even clear that the jury did not award damages for the full period. As noted above, the jury returned a verdict for TransPerfect of $1,002,006, indicating that it had dollars, a number not argued by either side. The verdict form asked the jury, “[W]hat total damages do you find for TransPerfect, if any?” Docket No. 415, Verdict at 3 (emphasis added). The jury reached a damages verdict within the range propounded by the experts’ testimony. It may have extrapolated MotionPoint’s infringing sales for the full period but found them to be less than TransPerfect’s expert suggested. The Court cannot award additional pre-verdict damages on its own at this point.”

Finally, the district court concluded that it analysis was consistent with other decisions. “In similar circumstances, other courts have refused to award supplemental pre-verdict damages. In Presidio Components Inc. v. American Technical Ceramics Corp., for instance, a court in the Southern District of California found,

The jury is presumed to have compensated Presidio for all of its lost profits leading up to the trial. During trial, Presidio could have — but did not — argue to the jury that its suggested amount of $1,048,000 should be proportionally increased for the two months not accounted in the sales data. Under these circumstances, awarding additional amounts of damages incurred before trial would be an improper invasion of the jury’s province to determine actual damages and an inappropriate use of 35 U.S.C. § 284 to enhance inadequate compensatory damages.

2010 WL 3070370, at *2 n.1 (S.D. Cal.) (quotation marks and citations omitted), aff’d in relevant part, vacated in part on other grounds 702 F.3d 1351 (Fed. Cir. 2012).”

Accordingly, the district court denied the motion for supplemental damages.

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