Articles Posted in Damages

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The district court had previously held that no reasonable jury could find that the plaintiff Corning Optical Communications Wireless LTD (“Corning”) marked its products or otherwise complied with the marking requirements Section 287(a) of the Patent Act. Corning requested that the district court reconsider its ruling.

The district court noted that defendants had produced unrebutted evidence in support of their motion for summary judgment that “[a] sale of an accused distributed antenna system to an American end customer starts with the customer issuing a purchase order to Corning’s American parent. The parent company then issues a purchase order to Corning, and Corning in turn issues another purchase order to a third-party manufacturer. The manufacturer ships the product directly to the end customer in the United States. Corning takes title to a product when it leaves the manufacturer and retains it until it reaches the end customer. Immediately before title transfers to the customer, Corning’s American parent takes ‘flash title,’ temporary legal ownership that lasts only a split second.”
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Isola USA Corp. (“Isola”) moved to compel Taiwan Union Technology Corp. (“TUC”) to provide updated sales data in response to document requests an interrogatories. In response to this discovery, TUC had previously provided sales data on allegedly infringing products that covered a period up to December 31, 2014. Isola moved to compel TUC to update that data to cover a period up to July 31, 2015.

In its motion, Isoled asserts that the information sought was relevant because it would be an update of information TUC has already produced. Isola also asserted that it would be prejudiced if the information was not produced, because it should be allowed to present the most complete picture of damages to the jury at trial. In addition, Isola claimed that TUC was required to supplement its sales data pursuant to Federal Rule of Civil Procedure 26(e)(1)(A) on the theory that TUC’s disclosures are now “incomplete” due to the passage of time.
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Plaintiff Juno Manufacturing, LLC (“Plaintiff” or “Juno”) filed a patent infringement complaint against Defendant Nora Lighting, Inc. (“Defendant” or “Nora”). The complaint alleged that Defendant infringed Plaintiff’s patent, No. 5,505,419 (the “‘419 Patent”), entitled Bar Hanger for a Recessed Light Fixture Assembly. Nora filed a motion for summary judgment seeking a judgment that Juno was barred from recovering damages on the ground that Juno failed to properly label its products.

In its motion, Nora asserted that Juno failed to provide proper notice of the ‘419 Patent. As explained by the district court, the requisite notice can be actual or constructive.
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After the court struck plaintiff’s damage expert’s report for failing to tie damages to the limited feature of the patented invention, the court permitted the plaintiff to submit a supplemental expert report. Once the supplemental expert report was served, AT&T again moved to exclude the plaintiff’s damage expert from the upcoming trial.

AT&T contended that the opinions in the Supplemental Report, organized around four alternative damages calculations presented in two sets of two, did not correct the defects in the original report because plaintiff’s expert (Parr) did not tie “his damages calculations to the value of the patented invention.” AT&T further argued that the calculations simply attempt to exclude certain non-infringing revenue from the royalty base and do not attempt to address apportionment at all, which runs afoul of the entire market value rule.
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After a jury returned a verdict against Apple, Apple filed a motion for judgment as a matter of law or a new trial. The district court subsequently notified the parties pursuant to Rule 59(d) that it was considering granting a motion for a new trial for a reason not stated in Apple’s original motion.

During the trial and apparently at Apple’s request, the district court instructed the jury on the entire market value rule. Smartflash had argued that it did not employ the entire market value rule at trial and instead employed an apportionment analysis.
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Invista North America S.A. R.L. (“Invistia”) filed a patent infringement action against M&G USA Corporation (“M&G”). As the case progressed toward trial, both parties exchanged expert reports on damages, which implicated the entire market value rule.

As explained by the Federal Circuit, the entire market value rule is derived from Supreme Court precedent requiring that the patentee ‘must in every case give evidence tending to separate or apportion the defendant’s profits and the patentee’s damages between the patented feature and unpatented features, and such evidence must be reliable and tangible, and not conjectural or speculative.’ Astrazeneca AB v. Apotex Corp., — F.3d. —, 2015 WL 1529181 at *11 (Fed. Cir. April 7, 2015).
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After the parties submitted expert reports in this patent infringement action, Ford objected to Eagle Harbor’s damage expert’s expected testimony and demonstratives. Ford objected to Eagle Harbor’s evidence because it involved multiple dates of possible infringement and the damage expert only calculated his royalty rate based on one possible date of first infringement.

As the district court explained, “[i]n his report, Mr. Wagner provides that, for the alleged infringement by Ford’s SYNC system, ‘the hypothetical negotiation date is on or around 2007 Q2.’ . . . Mr. Wagner’s trial exhibits, however, disclose three other possible dates for the date of first infringement. . . . These additional dates are based on the issuance of two of the continuation patents–the ‘739 Patent and the ‘119 Patent–and the possibility that Eagle Harbor’s damages may be limited for failure to mark. The new dates are March 23, 2010, August 17, 2010, and August 23, 2011. Mr. Wagner did not provide a hypothetical negotiation for any of these new dates.”
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As the Open Text v. Box patent case gets closer to trial, Open Text sought to preclude Box from asking the jury to award damages in the form of a fully paid-up lump sum that would cover the life of the patents-in-suit. Open Text argued that such a result would preclude Open Text from seeking an injunction or post-verdict ongoing royalties, which would improperly allow the jury to decide equitable issues.

Although the district court agreed that a lump-sum award might indeed preclude the injunction and/or post-verdict ongoing royalties, the district court stated that “there is no doubt that a fully paid-up lump sum is an allowable form of damages. See, e.g., Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1325-26 (Fed. Cir. 2009) (discussing the licensor and licensee’s option of entering into an “upfront, paid-in-full royalty” in the hypothetical negotiation).
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Plaintiffs Smartflash LLC and Smartflash Technologies Limited (collectively “Smartflash”) filed patent infringement actions against Apple, Inc. (“Apple”), Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., Samsung Telecommunications America, LLC (collectively “Samsung”), HTC Corporation, HTC America, Inc., and Exedea, Inc. (collectively “HTC”) (all collectively “Defendants”) alleging infringement of several patents.

Smartflash’s expert on damages, Mr. Mills, based portions of his damage calculations on surveys conducted by Dr. William Wecker. As explained by the district court, Smartflash hired Dr. Wecker, a statistician, to conduct four surveys related to consumer purchasing decisions of the accused products: (1) an “App Store” survey; (2) a “Movies and TV Shows” survey; (3) a “Music” survey; and (4) a “Books and Parental Controls” survey. Each of the surveys asked consumers if certain features “motivated” them to purchase accused products.
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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.
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