Patent Damages

Judge Rader allows public access to trial testimony because of “increased interest” in patent damages methodologies

Many readers are probably aware that Judge Rader has been sitting by designation in district courts to hear patent cases and that he has issued a number of important and instructive rulings on damages in these cases.  One of them is IP Innovation L.L.C. v. Red Hat, Inc., which has been pending in the Eastern District of Texas.  In a prior opinion in that case issued on March 10, 2010 (click here), Judge Rader discussed the trial court as gatekeeper and the entire market value rule.  His opinion also states that established licenses for the patent-in-suit are generally the best measure of the starting point in determining a reasonable royalty.


Utah court: refuses to apply entire market value rule to lump-sum damages; finds no marking violation where unmarked products were not within scope of license

Earlier today, we issued a post on a Utah case, Phillip M. Adams & Assoc. LLC v. Winbond Electronics Corp., Case No. 1:05-CV-64 TS (D. Utah, Sept. 8, 2010).  The previous post summarized the court's decision on a motion in limine, in which the court refused to exclude testimony from the inventor concerning factual issues relevant to reasonable royalty damages.  Only a week earlier, the Utah court also issued an opinion (click here)that addressed summary judgment on two issues:  entire market value rule and patent marking.  Both issues are interesting.

Click the "continue" link to read more about this case...


See the recent article on Legislative patent damages reform published in the Los Angeles Daily Journal

One of our bloggers, Chris Marchese, published an article on August 11, 2010 that he co-wrote with Olga May (an associate in Fish's San Diego office).  The article is entitled:  "Runaway Patent Damages Awards:  Is Statutory Reform on the Way?"  (See the article here:  Marchese-May Daily Journal Article on Patent Damages Reform.)  The article is reprinted and/posted with the permission of the Daily Journal Corp.  The article talks about the huge damages verdicts being handed down by juries across the country, and offers an opinion -- of course, the two authors' opinion -- that Congress should intervene and issue amendments to the patent damages statute that have teeth....particularly, legislation that codifies the key principles of the entire market value rule and apportionment.