Patent Damages

EDTX denies exclusion of settlement license and “real estate” apportionment

The Eastern District of Texas, in ZiiLabs, Inc. v. Samsung Electronics Co., (Judge Roy S. Payne) (December 4, 2015), granted in part and denied in part defendant’s motion to exclude various opinions from plaintiff’s damages expert, Robert Mills.


  • Defendant sought to exclude expert’s reliance on litigation settlement license covering 100 patents as not economically comparable and not the most reliable license in the record.
  • Defendants sought to exclude expert’s reliance on licensing negotiations that never resulted in executed licenses, and were not technically comparable.
  • Defendant sought to exclude apportionment based on surface area of accused element on the chip.
  • Defendants sought to exclude expert’s testimony on several economic theories

Federal Circuit Opinion Asetek Danmark a/s v. CMI USA Inc. Cites Patent Damages Treatise

In a December 2nd opinion by the Federal Circuit, the court cited Patent Damages Law and Practice as a “leading commentary.” The comprehensive treatise was co-authored by Chris Marchese, one of the bloggers on this site, and has been cited in numerous district courts as well.


Upcoming webinar: Drafting Patent Claims from a Litigator’s Perspective

Please join me on January 22 for a webinar, “Drafting Patent Claims from a Litigator’s Perspective.” In this first-of-the-season patent-focused webinar hosted by Fish & Richardson, I will cover the importance of:


EDVA approves permanent injunction; provides detailed analysis of eBay factors and injunction scope

On May 23, 2011, Judge Robert E. Payne of the Eastern District of Virginia issued an opinion granting ePlus’ (“plaintiff”) motion for a permanent injunction against Lawson (“defendant”). ePlus, Inc. v. Lawson Software, Inc., Case No. 3:09-CV-620 (E.D. Va., May 23, 2011). Defendant infringed plaintiff’s e-procurement software patent. Defendant, a large company, manufactured a “Core S3 Procurement System” able to run either defendant’s or plaintiff’s e-procurement software.


Kathrein v. Microondas

On May 19, 2011, Judge Geraldine Soat Brown of the Northern District of Illinois sitting in place of Judge Ronald Guzman issued an opinion granting the defendant’s motion to strike plaintiff’s supplemental response. Kathrein-Werke KG v. Radiacion Y Microondas SA, Case No. 07-C-2921 (N. D. Ill., May 19, 2011). The court held, without prejudice, that any decision to change a damages methodology, in light of Uniloc, must be decided by the District Judge. The court found that changes to a damage’s methodology is more than a mere “supplementation” under FRCP 26(e). “It is not appropriate to insert such a significant change in the case under the label ‘supplementation.’” Id. Thus, the court decided to strike the supplemental response , but not on its merit; rather, struck it on its characterization as a supplement to plaintiff’s calculation of damages. Id.

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