Patent Damages

DDE denies request to strike lost profits opinion re non-patented items; addresses test data admissibility

The District of Delaware, in Masimo Corp. v. Philips Elec. North Am. Corp., (Judge Leonard P. Stark) (October 31, 2016), addressed motions to strike opinions of several experts related to damages.  The experts in question were Michael Keeley (Finance), Joseph Dyro (Technical), Nitin Shah (Technical), Vijai Madisetti (Finance), and Michael Wagner (Finance).  The court granted in part and denied in part the motions.  The key motions are addressed below.


NDILL certifies for appeal two lost profits issues relating to a foreign patent owner and its US subsidiary

On May 23, 2013, Chief Judge Holderman of the Northern District of Illinois issued an opinion in Fujitsu Ltd. v. Tellabs, Inc., Case No. 09-C-4530 (Doc. No. 1103), addressing a summary judgment motion by Tellabs on the issue of whether Fujitsu Ltd. could recover lost profits.  Tellabs offered two grounds for summary judgment:  “(1) Fujitsu Limited is not entitled to damages in the form of the lost profits because it sells no products in the United States and (2) Fujitsu Limited cannot claim the lost profits of its North American subsidiary and non-exclusive licensee, Fujitsu Network Communications, Inc.”  Slip op. at 1.


Lost Profits Rejected Where Patentee Failed to Prove It “Would Have Made” a Competing Product Absent the Alleged Infringement

On March 29, 2012, in Avidyne Corp. v. L-3 Comms. Avionics Sys., Inc., Civil Action No. 05-11098 GAO (D. Mass. March 29, 2012), Judge O’Toole ruled on summary judgment motions, including a motion against the patentee’s claim for lost profits.  The court initially observed whether lost profits are categorically recoverable is a question of law for the court, and only after lost profits are deemed recoverable does the jury then determine the amount of lost profits.  See Wechsler v. Macke Int’l Trade, Inc., 486 F.3d 1286, 1293 (Fed. Cir. 2007).