Patent Damages

Detailed opinion on ongoing royalties from Arizona court

Cases concerning ongoing royalties have been issuing with increasing frequency.  We have discussed other cases in prior posts, including our discussion of Presidio Components in a post dated October 29, 2010.  The District of Arizona, in Bard Peripheral Vascular, Inc. v. W.L. Gore & Assoc., Inc., No. CV-03-597-PHX-MHM (D. Ariz. Sept. 8, 2010), issued a lengthy, detailed ongoing royalty opinion.  The case is worth reading for its interesting analysis and because it includes at the end a license agreement that the court fashioned, presumably with the assistance of the attorneys from both sides.

Judge Mary Murgula issued the opinion in what proved to be “the most complicated case this Court has presided over.”  The jury had fixed a 10% reasonable royalty rate, and the court was faced with the two sides’ competing proposals for a post-judgment royalty.  Of course, the plaintiff was seeking a higher rate (35% on some products and 25% on others), while the defendant proposed something lower (5%).