July 6, 2010
Garbage Bits
Telcordia
sued Cisco for infringing network data transfer patents
4,893,306;
4,835,763; and
RE36,633. '306 was knocked out by noninfringement in summary judgment. '763
and '633 ran the gauntlet through trial to a $6.5 million damages award. The
district judge then tacked on prejudgment interest, an accounting for interim
sales, and "ordered the parties to negotiate the terms of a royalty that would
apply to the accounting and to post-judgment sales." Telcordia appealed the '306
claim construction. Cisco cross-appealed '306 and '763 validity, as well as the
post-trial damages award and ongoing royalty negotiation dictate.
Continue reading "Garbage Bits"
Posted by Patent Hawk at 8:47 PM | Claim Construction | Comments (1)
June 1, 2010
Photo Finish
Jack
C. Benun must really have wanted to be in pictures. Benun had a string of
companies in film roll processing (lens-fitted film packages (LFFPs)), which
digital technology has rendered obsolete. In the process of processing, Benun
infringed Fujifilm patents. This episode, after injunction, interdicted
shipment, illicit re-importation, bankruptcy, damages, and a finding of
contempt, "is the sixth appeal from decisions finding liability for infringing
Fuji's LFFP patents by Benun and companies under his control."
Continue reading "Photo Finish"
Posted by Patent Hawk at 12:09 PM | Damages | Comments (0)
March 7, 2010
Whole Wallet
Taking
a break from the frigid east Washington winter, CAFC Judge Rader has been
marshalling in Marshall. Rader's adjudicating an East Texas patent brawl between
IP Innovation and Linux vendors Red Hat and Novell. Judge Rader takes no wooden
nickels as the Linux twins sought to toss IPI's damages expert as a Daubert
deuce. Herein the good Judge smokes one.
Continue reading "Whole Wallet"
Posted by Patent Hawk at 12:47 PM | Damages | Comments (2)
February 8, 2010
Unpublished
ResQNet sued Lansa in 2001 for infringing five patents related to
terminal emulation. Lansa found art, two unpublished user manuals for a software product
called Flashpoint, that it argued anticipated one of the asserted patents,
6,295,075. But the district court wouldn't admit the art as public, and hence
not legally prior art. Lansa tried to argue that NewLook 1.0 anticipated '075 by being sold more than a
year prior to 075's filing date, but NewLook 1.0 "lacked an essential
limitation," so was not found to be invalidating prior art. Alas for Lansa, a
later version of NewLook was found to have the feature, and so infringed. Then
there were the issues of damages, and sanctions....
Continue reading "Unpublished"
Posted by Patent Hawk at 2:52 PM | Prior Art | Comments (1)
December 22, 2009
Unpreserved
i4i sued Microsoft for a pissant feature in Word: editing custom XML.
But to i4i's business, the feature was puissant. A seven-day trial found
Microsoft willfully infringing a valid patent, with a jury award of $200
million. "Although statutorily authorized to triple the jury's damages award
because of Microsoft's willful infringement, the district court awarded only $40
million in additional damages. It also granted i4i's motion for a permanent
injunction." The inevitable appeal, widely expected to go more Microsoft's way
than not, did not. Procedural fumbling by supposedly the best lawyers money can
buy sold Microsoft short. Herein, CAFC case law heavy on burden and sufficiency,
in a case practically covering the gauntlet of patent enforcement.
Continue reading "Unpreserved"
Posted by Patent Hawk at 8:57 PM | Case Law | Comments (1)
September 11, 2009
Form Fitting
In the salad days of personal computing, Ben Day came up with a "touch screen
form entry system" while working at AT&T.
4,763,356 resulted. Current owner Lucent disingenuously sued Dell and
Gateway over it, while Microsoft software was the real culprit. Microsoft
indemnifies its big corporate customers, and so stepped in. And lost. To the tune of $358
million. Bad tune. So bad, the CAFC called it tone deaf. Herein, two teams of
randomly competent lawyers dance bad ballroom.
Continue reading "Form Fitting"
Posted by Patent Hawk at 5:31 PM | Damages | Comments (1)
August 21, 2009
Ticker
Cardiac
Pacemakers sued St. Jude Medical for infringing
4,407,288, claiming an implantable cardiac defibrillator (ICD). On second
appeal, while multiple issues get the ticker running quicker, what really pumps
is excluding method claims from Section 271(f).
Posted by Patent Hawk at 11:56 PM | Case Law | Comments (5)
June 30, 2009
B+
Monday,
an East Texas jury awarded $1.67 billion for infringing a single patent:
7,070,775, which Centocor and New York University jointly own. '775 claims an
"antibody or antigen-binding fragment." The patent applies to an arthritis drug.
Abbott was the infringing party. $1.17 billion was for lost profits, plus $504
million for reasonable royalty damages. Abbott continues to swear
non-infringement. The infringing product,
Humira, sold more than $4.5 billion in 2008, Abbott's top seller, accounting
for 15% of its revenues last year. Centocor's competing arthritis drug is
Remicade.
Posted by Patent Hawk at 11:58 PM | Damages | Comments (0)
June 16, 2009
Order of Magnitude
Heeling
Sports has an enforcement campaign against infringers of its roller skate shoes.
It botched the first round requesting damages for default judgment. As a result,
Central California District Court Judge Florence-Marie Cooper awarded only
$280,000 in damages, without explanation. Heeling
appealed,
which resulted in a remand for the judge to explain herself. Yesterday she
did... not explain herself, when she changed her mind and awarded Heeling
the $2.8 million it had asked for in the first place. Because sometimes, when
money talks, that's all need be said.
Posted by Patent Hawk at 10:00 PM | Damages | Comments (1)
May 20, 2009
Wow Bow
Leon
Russell once wrote: "Stray dogs that live on the highway walk on three legs.
They learn too slow to get the message." Today, a jury awarded Toronto-based i4i
$200 million for Microsoft's infringing
5,787,449. Last month, Singapore-based Uniloc scored a $388 million verdict
from Microsoft infringing
5,490,216. Oozing denial, but with raucous squeals, Microsoft vows appeals.
Posted by Patent Hawk at 3:26 PM | Damages | Comments (1)
May 2, 2009
Reasonable Royalty
35 U.S.C. §284
awards damages "in no event less than a reasonable royalty for the
use made of the invention by the infringer." Reasonable royalty is thus the
lowest award possible for patent infringement, and in no way bounds what
infringement should cost. §284 also allows award of enhanced damages, regardless
of willfulness: "[T]he court may increase the damages up to three times the
amount found or assessed." Herein, a gander at the damages floor: reasonable
royalty.
Continue reading "Reasonable Royalty"
Posted by Patent Hawk at 3:27 PM | Damages | Comments (2)
April 5, 2009
Skating
Figuring
infringement damages can be tricky. But, as with everything else, one can also
be stupid about it. Heeling Sports successfully, by default judgment, sued
footwear importers and distributors for infringing patents for roller skate
shoes. When it came to damages, the skating terrain turned problematic.
Posted by Patent Hawk at 9:04 PM | Damages | Comments (0)
March 17, 2009
Canned
Crown
Packaging and Rexam Beverage Can are trying to pop patents on each other. Crown
tried to crown Rexam with
6,935,826, while Rexam counterclaimed to cane Crown with 4,774,839. Both
came a cropper in summary judgment of non-infringement. From the appeal came a
squeal of "no deal," with a toot of there being a dispute in fact.
Posted by Patent Hawk at 11:21 PM | Claim Construction | Comments (0)
March 9, 2009
Continuing Royalty
H. Tomás Gómez-Arostegui, Assistant Professor of Law, Lewis & Clark Law School,
Portland, Oregon -
In eBay Inc. v. MercExchange, L.L.C. (2006), the Supreme Court held that traditional equitable factors apply to injunctions in patent and copyright cases, and that therefore the mere fact a defendant has infringed a patent or a copyright does not necessarily mean a final injunction must issue. In the three years since, lower courts have denied final injunctions more frequently than before and are now struggling with what relief, if any, to give prevailing plaintiffs in lieu of an injunction. Some courts permit plaintiffs to sue again later. But most award prospective relief to plaintiffs--sometimes a lump-sum damages award or more commonly a continuing royalty--to compensate plaintiffs for the defendant's anticipated post-judgment infringements. Plaintiffs often object to prospective-compensation awards as constituting compulsory licenses.
Continue reading "Continuing Royalty"
Posted by Patent Hawk at 8:44 PM | Damages | Comments (0)
February 22, 2009
Damages Derision
While
Alactel-Lucent and Microsoft have settled much of their patent spat, one
outstanding battle, rushing headlong towards a CAFC cliffhanger, worries over
damages method. The case involves
a $511.6 million
award to Alactel-Lucent over a calendar function. Microsoft filed the appeal
over the whole gumbo: validity, infringement, and award, as is the norm. A
Microsoft-supportive amici brief chimed in,suggesting patent damages were out of
control. This brief came from other serial infringers, including Apple and
Oracle, that figure they pay more than they make on patents, and so want to cut
their infringement costs by rigging the system to their advantage. On February
9th, a diverse group pounced on that, with derision.
Continue reading "Damages Derision"
Posted by Patent Hawk at 1:18 AM | Damages | Comments (0)
January 15, 2009
Damaging Apportionment
Scott
Shane has thrown another
log in the fire roasting the idea of apportionment as a means for figuring
patent damages. Apportionment was found to be bad news for patent value,
naturally, but also R&D, company valuation, and jobs. The harm would purportedly
be unevenly spread, affecting more industries reliant upon innovation.
Continue reading "Damaging Apportionment"
Posted by Patent Hawk at 10:52 AM | Damages | Comments (0)
December 20, 2008
Loop in the Lasso
35 U.S.C. § 271 defines "infringement of patent." ¶ (f)
closed a dodge: foreign assembly that would be infringing if done domestically.
The Supreme Court, in
Microsoft v. AT&T, declared software an exception to that - one could skirt
process infringement by shipping a software disc out of the country. Did that
leave the 2005 CAFC ruling in Union Carbide v. Shell Oil standing, where
"Section 271(f) applies to components used in the performance of patented
methods and processes"? For now, in another highlight of the illogical
incongruities in U.S. patent law.
Continue reading "Loop in the Lasso"
Posted by Patent Hawk at 2:22 PM | Damages | Comments (0)
October 19, 2008
Damaged Damages
A
judge in the panhandle state pandered to his prejudice by capriciously denying Floyd Minks
$1.3 million in jury-awarded patent damages against Polaris, instead parceling Minks
a measly $55,000, but granting attorneys fees, albeit half the amount requested
without offering a new trial. In vacating and remanding, the CAFC gives a lesson
in reasonable royalty while putting a lid on judicial juggling of fact and law.
Continue reading "Damaged Damages"
Posted by Patent Hawk at 11:18 PM | Damages | Comments (2)
August 28, 2008
Heated Argument
Lexion
Medical sued Northgate for infringing
5,411,474 and
6,068,609, which claim techniques for heating a patient's gut in preparation
for laparoscopic surgery. '609 was stomped by Obzilla JMOL, while '474 eked out
$721,662 in jury-awarded damages. On appeal, an overturned claim construction
vacated the award, but Obzilla remained triumphant.
Continue reading "Heated Argument"
Posted by Patent Hawk at 2:41 PM | Claim Construction | Comments (0)
August 22, 2008
Shoe Shoo
DSW
sued Shoe Pavilion for infringing
6,948,622 and
D495,172, claiming a shoe display rack. Shoe Pavilion responded by removing
the offending racks. The district court booted the case. The CAFC booted the
district court, for importing a limitation into claims unjustifiably, and not
properly awarding damages. Shoe Pavilion owed for the time it was infringing.
"Because patent infringement is a strict liability offense, the nature of the
offense is only relevant in determining whether enhanced damages are warranted."
Posted by Patent Hawk at 1:04 PM | Damages | Comments (0)
August 18, 2008
In the Aorta
Dr.
Jan K. Voda, M.D., sued Cordis for infringing two catheter patents:
5,445,625 &
6,083,213, getting a 7.5% royalty, and even enhanced damages and attorneys
fees for willfulness. In light of eBay, Voda overreached for a permanent
injunction. In a ruling replete with succinct case law infusions, appeal of most
everything found the district court ruling in the right vein, except, most
notably, willfulness in light of
Seagate.
Continue reading "In the Aorta"
Posted by Patent Hawk at 11:16 AM | Injunction | Comments (0)
July 22, 2008
Prove It
In
its battle to pry open Microsoft's wallet, Alcatel-Lucent has two parallel
patent cases. Yesterday it filed an identical motion in both cases, seeking full
production of all Microsoft's patent license agreements with third parties. Such
agreements are almost always confidential, as a condition of settlement. Alcatel
doubts whether Microsoft has been truthful with regard to its settlements.
Posted by Patent Hawk at 1:28 PM | Damages | Comments (0)
June 23, 2008
In A Huff
Southern
California Judge Marilyn L. Huff, upholding a jury finding, ruled that Microsoft
must pay Alcatel-Lucent $357.7 million for infringing
4,763,356, claiming a user interface for choosing a calendar date from a
menu, used in Microsoft programs Outlook, Money, and Windows Mobile. Further,
infringing stylus patent
5,347,295 with Windows XP Tablet PC Edition comes with a $10.35 million
price tag. The $368 million tab inflates to $511.6 million with prejudgment
interest ($139.5 million). Needless to say, Microsoft vows appeal.
Posted by Patent Hawk at 10:23 PM | Damages | Comments (0)
June 2, 2008
Coin of the Realm
The
candy company Mars sucessfully sued Coinco for infringing
3,870,137 and
4,538,719, claiming ways to validate coins put in vending machines. Mars
wanted damages on lost profits. After 15 years of enforcement action,
those damages looked more like a lost cause.
Continue reading "Coin of the Realm"
Posted by Patent Hawk at 4:33 PM | Damages | Comments (0)
March 19, 2008
Willfully
Australian
patent-holding company QPSX Developments 5 sued Nortel, Juniper Networks,
Lucent, Cisco and Alcatel in June 2005 for infringing
5,689,499, in east Texas. All settled but Nortel. Nortel lost.
Posted by Patent Hawk at 11:19 PM | Damages | Comments (0)
March 18, 2008
Dish Wishing
Dish
Network, formerly EchoStar, remains in denial, now begging the CAFC for a
reversal of its upholding a $73.9 million jury damages award for infringing
TiVo patents. Dish points to an expert
witness they claim was self-contradictory, thus leaving infringement in doubt.
What's most in doubt is whether Dish will get anything beyond a deaf ear to its
plea.
Continue reading "Dish Wishing"
Posted by Patent Hawk at 7:03 PM | Damages | Comments (0)
March 15, 2008
Half Blind
35
U.S.C. §284 sets patent award "damages adequate to compensate for the
infringement but in no event less than a reasonable royalty for the use made of
the invention by the infringer." Georgia-Pacific v. United States Plywood
enumerated 15 factors upon which royalty determination may be made, and has
become the bedrock of damages case law. A reasonable royalty is judicially
defined as that amount which would have been set based upon a hypothetical
negotiation between willing parties. How would such a negotiation be conducted
between an infringer and a purely economic patentee (PEP), a patent holder that
is not practicing the infringed invention?
Posted by Patent Hawk at 8:02 PM | Damages | Comments (1)
Damages Trends
Contrary to propaganda, patent damages are not burgeoning; rather, remaining
fairly constant. On average, awarded damages in software cases are less than for
mining patents, and almost a third less than telecom patent cases. Juries award
larger damages, but that may be a statistical anomaly for the types of cases
tried before jury rather than at the bench. As purely economic patentees (PEPs)
participate more in the patent market in this decade, reasonable royalties
becomes more the basis for awards than lost profits.
Continue reading "Damages Trends"
Posted by Patent Hawk at 2:43 PM | Damages | Comments (1)
February 26, 2008
Down Boy
Medtronic's
lawyers were hammered for
malpractice in patent suit against BrainLAB last week. Now a different legal
crew barking for Medtronic has been slapped a $10 million fine for similar
malfeasance.
Posted by Patent Hawk at 4:38 PM | Litigation | Comments (1)
Relief
Carlos Amado owns
5,293,615, which claims an interface method between
spreadsheet and database programs. Amado sued
Microsoft for its
Office product
infringing, and won 4¢ per copy royalty, and an
injunction. The injunction was stayed pending post-trial motions, during which
Amado got 12¢ per copy royalty. In wake of the SCOTUS
eBay
decision, the injunction was dissolved by the district court. On second appeal,
the CAFC affirmed the district court handling of injunction, while a spat about
spare-change royalty rate was remanded.
Posted by Patent Hawk at 11:19 AM | Damages | Comments (1)
Willful
Monday,
the Supreme Court snubbed certiorari for the CAFC en banc
Seagate decision that practically eviscerated willful patent infringement.
Nor reason was given. To seek enhanced damages, the Seagate standard requires
that a patent holder prove that an infringer was "objectively reckless" in
knowingly infringing a patent. Damages deflation ahead.
Posted by Patent Hawk at 12:20 AM | Damages | Comments (0)
February 23, 2008
Blackboarded
Blackboard
suing competitor Desire2Learn for
infringing
6,988,138 spurred
academic outrage, but a hillbilly east Texas jury paid the pointy-heads no
heed, awarding $3 million in damages.
Continue reading "Blackboarded"
Posted by Patent Hawk at 7:04 PM | Damages | Comments (1)
February 17, 2008
Interest
As
reported
last week, Dr. Bruce Saffron nabbed
Boston Scientific for
patent infringement to the tune of $432 million. Friday, the presiding judge
tacked on $69 million in pretrial interest. Saffron's lead attorney pipped: "$69 million is a nice amount." Prejudgment interest is common, but not
a given.
Posted by Patent Hawk at 3:29 PM | Damages | Comments (0)
February 13, 2008
Apportion This
The
Innovation Alliance sports
a study by Prof. Paul Janicke that concludes: "There is no pattern of
runaway jury verdicts in patent cases." What's more: "Despite what some argue,
under our system of justice, judges do not simply "rubber stamp" a jury's damage
award."
Continue reading "Apportion This"
Posted by Patent Hawk at 5:14 PM | Damages | Comments (0)
February 12, 2008
Stent for Rent
Over
a decade ago, radiologist Dr. Bruce Saffran invented a drug-eluting porous
sheet, and was granted
5,653,760. Boston
Scientific liked the idea. Imitation resulted in flattery costing $431.9
million, an 8% royalty on U.S. sales, and 6% on foreign sales, from 2004 through
last September. The award was reputedly the sixth largest in history. Hard-nosed
BS will try to get presiding Eastern District of Texas Judge T. John Ward to
overturn the jury verdict; barring that, appeal.
Continue reading "Stent for Rent"
Posted by Patent Hawk at 6:31 PM | Damages | Comments (10)
February 9, 2008
Vision Correction
CIBA
Vision, maker of extended-wear contact lenses, was short-sighted: its
ophthalmologist, Rembrandt Vision Technologies, corrected CIBA's vision. The tab
was $41 million. That's a 6+% royalty for past sales of contact lenses
infringing
5,712,327, which claims contact lenses with superior water absorption.
Rembrandt now has superior lucre absorption.
Continue reading "Vision Correction"
Posted by Patent Hawk at 1:17 PM | Damages | Comments (0)
January 30, 2008
Restraint
American
Seating sued USSC Group for infringing
5,888,038, claiming a wheelchair restraint system for buses. On the second
wheeling to the appeals court, invalidity by prior public use and lost profits
damages were the issues.
Posted by Patent Hawk at 2:21 AM | Prior Art | Comments (0)
January 28, 2008
Dr. PatentLove
or: How I learned to Stop Worrying and Love Proposed Damages Apportionment Law
The blawgosphere is alive with discussion of proposed patent reform. Patent Troll Tracker today mocked Dennis Crouch for his support of the status quo. Here at Patent Prospector, we maintain a healthy amount of skepticism about the proposed legislation. Patent Hawk earlier pointed out how the new damages apportionment rules could potentially raise the cost of litigation for accused infringers by requiring the disclosure of more (highly proprietary) information about the cost, revenue, and profit of accused products and processes. For my part, in an earlier post I called the new damages apportionment rules "the crudest and most error-prone way to handle bad patents." The worry is that judges and juries will tend to "split the baby" by lowering some damages awards, which in may cases are properly justified by the economic value of a patented technology. The political reality is that a Congressional amendment to the law suggests the inference that current reasonable royalty awards have been too favorable to patentees. (See, for example, how many injunctions have been awarded to non-practicing entities since Mercexchange v. eBay.) Information asymmetries between judge or jury and the expert witnesses and parties should be part of the equation in designing the rules, as some recent antitrust law scholarship suggests.
Despite this skepticism, I cannot agree with Dennis that "the proposed patent reforms now being debated by the Senate do virtually nothing to address these serious problems and instead potentially cause harm to the current regime." Specifically, Dennis points out "massively overlapping claims" as a problem for the current patent system. Since earlier posting strong criticism of the proposed damages apportionment rules, I've come around to seeing how the proposed rules could actually improve the efficiency of patent markets afflicted with the transactions costs associated with "massively overlapping claims." Here's how:
Continue reading "Dr. PatentLove"
Posted by Michael Martin at 4:43 PM | Damages | Comments (7)
Earmarked
Daiichi
Sankyo sued Apotex for infringing
5,401,741, which was found obvious
on appeal. In
securing a temporary injunction at the outset of litigation, Daiichi had posted
a $5 million security deposit. New Jersey district court judge Susan Wigenton
last week awarded the deposit to Apotex, "to recover damages for wrongful
injunction." Daiichi gets to keep the interest paid on the deposit.
Posted by Patent Hawk at 1:00 PM | Damages | Comments (1)
January 22, 2008
Damages Apportionment Blowback
The
presently
proposed Senate revision to awarding patent infringement damages
incorporates an old concept in new clothing: damages apportionment.
Prior to
the patent act of 1946, § 284 provided for such hair-splitting, and was
referred to by the patent commissioner at the time as "one of the sorest spots in
the enforcement of the law in the United States." What could it mean this time
around?
Continue reading "Damages Apportionment Blowback"
Posted by Patent Hawk at 11:04 PM | Damages | Comments (2)
October 18, 2007
Drive Train
Paice
sued Toyota over three hybrid electric vehicle drive train patents:
5,343,970;
6,209,672;
6,554,088. Paice scored a doctrine of equivalents (DOE) win, with $4.3
million in damages. The district court sua sponte imposed an ongoing royalty on
Toyota. Toyota appealed the infringement verdict, while Paice wanted a permanent
injunction; neither got in gear. But the CAFC remanded for the district court to
justify its ongoing royalty rate, though considered it permissible for a court
to set such a rate, albeit gently discouraging it as general practice.
Dissenting judge Rader thought better: that the court setting the rate without
the parties' input smacked of a compulsory license.
Continue reading "Drive Train"
Posted by Patent Hawk at 9:59 PM | Damages | Comments (0)
October 17, 2007
Willful Wavering
Owing
to the
Seagate CAFC ruling this past August, essentially scuttling patent
infringement willfulness, Southern California U.S. District Judge James Selna
mulled a new trial for Qualcomm in its double-damages loss of $39.3 million to
Broadcom. "It would be an understatement to say that the Federal Circuit rewrote
decades of case law interpreting the requirements for demonstrating willful
infringement," Selna penned in his opinion.
Continue reading "Willful Wavering"
Posted by Patent Hawk at 12:43 PM | Damages | Comments (3)
September 26, 2007
Ears Ringing
Vonage,
the best of the VoIP providers, had its bell rung twice for patent infringement
in the past couple of days. Yesterday, a jury found Vonage infringed Sprint
patents; a $70 million tab in the offing. Vonage will, of course, appeal. But,
with history as a guide, that offers little succor, as Vonage lost its appeal
for two of three Verizon patents it infringed, and the third still looms. Being
the best by snitching others' IP is running the company into the ground.
Continue reading "Ears Ringing"
Posted by Patent Hawk at 12:15 PM | Claim Construction | Comments (1)
September 17, 2007
Calling Card
An
Eastern Texas jury slapped AT&T with a tab of $156 million for willfully
infringing calling card patents owned by TGIP (Thank Goodness IP?). That tab
could be tripled by the court. As it is, the award ranks as one of the largest
by a jury in the district.
Continue reading "Calling Card"
Posted by Patent Hawk at 11:53 PM | Damages | Comments (0)
September 5, 2007
Calibration
4,743,902,
owned by Mitutoyo, claiming a
device for electronically measuring an object's movement, has been a hex to
Central Purchasing. Central settled with Mitutoyo in 1994 over a 1992 assertion
of '902, agreeing not to further infringe. Central lost a declaratory motion in
1995 that sought to invalidate the patent. In a suit filed in 2003, Central got
collared for infringing again. Of course, Central appealed. Mitutoyo also
appealed, as its pitch for willful infringement got tossed by the trial court.
Continue reading "Calibration"
Posted by Patent Hawk at 11:46 PM | Litigation | Comments (0)
August 22, 2007
Waiving Under Willfulness
Seagate
appeals an order to disclose what would ordinarily be privileged attorney-client
communications between it and trial counsel. The springboard for waiving the
privilege by the district court is a finding of willful patent infringement. The
issue before the appeals court is proper scope of discovery when relying upon
advice of counsel, and the advice sours. But the CAFC goes far beyond that: in a
unanimous en banc reversal of its own precedent of waiving privilege, the
appeals court gratuitously furthers the recent judicial trend in eviscerating
patent enforcement, redefining willful infringement without provocation, an
issue orthogonal to that which it put before itself.
Continue reading "Waiving Under Willfulness"
Posted by Patent Hawk at 1:48 PM | Case Law | Comments (0)
July 12, 2007
Teardrop
Visudyne
is a light-activated drug treatment for a particular form of age-related vision loss,
specifically, "wet" macular degeneration. Visudyne's development began with a
serendipitous discovery, and ended in acrimony between the those involved in
development of the treatment that came to fruition over a decade after
initiation. A blockbuster with cumulative sales over $2.3 billion from product
launch in 2000 through March 2007, there was plenty of money to go around.
Tuesday, Judge William Young of Massachusetts district court adopted a patient
jury's verdict in sorting out a very complex story to set a reasonable royalty,
and, as a kicker, scolding the litigants for their pettiness. (MA
10783-WGY)
Posted by Patent Hawk at 1:29 AM | Damages | Comments (0)
June 26, 2007
Middle Ground
Considering
the injunction facing Vonage from
infringing Verizon patents, an injunction that could effectively force Vonage
out of business, in oral arguments today before a CAFC three-judge panel, Judge
Timothy Dyk wondered aloud about a middle ground.
Continue reading "Middle Ground"
Posted by Patent Hawk at 12:18 PM | Litigation | Comments (0)
June 13, 2007
Undertaking
A
couple of nails showed up near the coffin of the Patent Reform Act of
2007, placed by CAFC Chief Judge Paul Michel, who is turning into quite the
patent mover and shaker (last
month's letter). Michel's keyboard begs to type the adjective "stupid" in
describing the proposed revision to § 284 on damages, something Michel himself
parlays with but a tad more reserve.
Continue reading "Undertaking"
Posted by Patent Hawk at 4:15 PM | Damages | Comments (0)
May 26, 2007
Gone to Seed
After
illicitly squirreling away seeds, farmer Homan McFarling relentlessly fought
Monsanto over the licensing terms he agreed to. In the third appeal of the case,
the damages are assessed (CAFC
05-1570).
In reviewing damages awards in patent cases, we give broad deference to the conclusions reached by the finder of fact. [A] jury’s damages award “must be upheld unless the amount is grossly excessive or monstrous, clearly not supported by the evidence or based only on speculation or guesswork.”
Continue reading "Gone to Seed"
Posted by Patent Hawk at 12:57 AM | Damages | Comments (0)
May 11, 2007
Damaging Damages
Belying
its own legislative heritage, the bipartisan Patent Reform Act of 2007 grossly
complicates patent infringement compensation, moving from the current reasonable royalty to
an outrageous conjecture for a damages award "applied only to that economic
value properly attributable to the patent’s specific contribution over the prior
art." This economist throws his head back in laughter at this little obscenity
of insensibility, reminiscing about the scalding apportionment suffered over 60
years ago.
Continue reading "Damaging Damages"
Posted by Patent Hawk at 12:01 AM | Damages | Comments (0)
April 6, 2007
Hung Up
District
court Judge Claude Hilton slapped a odd order on Vonage today, stopping it from
signing up new customers. Vonage had been found to have
infringed
three Verizon patents. Verizon gave the judge the idea. Besides the
headache, this gives Vonage one more thing to appeal.
Posted by Patent Hawk at 11:55 AM | Litigation | Comments (0)
March 8, 2007
Hang Up
Losing
business because of lousy service, Goliath Verizon nailed David Vonage for
infringing three patents. The immediate damage to Vonage: $58 million, 70% less
than the $197m sought, and an ongoing 5.5% royalty if Vonage doesn't figure a
workaround. The infringement was found not willful. Verizon is seeking a
permanent injunction. This is but the first patent attack which Vonage must
weather, or wither.
Posted by Patent Hawk at 4:10 PM | Damages | Comments (0)
February 22, 2007
High Roller
Microsoft
would like nothing more than to eviscerate patent enforcement. Unlike its erstwhile
hardware brethren, IBM, Microsoft has struggled rather fruitlessly monetizing
its own patents. Constantly hammered for infringement, astonishingly dim in
handling settlement negotiations, Microsoft as town crier may have found a willing
audience in its
appeal to the Supreme Court
of its loss to AT&T, though no credit to the bozo Microsoft had as
its mouthpiece. Now it's lost the first round in its wide-ranging battle against
Alcatel-Lucent, nailed with a tab of $1.52 billion. But that's just the start of
it.
Continue reading "High Roller"
Posted by Patent Hawk at 7:23 PM | Litigation | Comments (0)
December 20, 2006
Flagrant
In
2003, Visto sued
Seven Networks in the Eastern District of
Texas for infringing three secure email patents:
6,023,708;
6,085,192; and
6,708,221. Seven was found guilty in April, with the jury awarding a royalty
rate of 19.75% on infringing product revenue, a tab of $3.6 million. Tuesday,
found willful, the tab has been doubled, and then some.
Posted by Patent Hawk at 4:48 PM | Damages | Comments (0)
December 14, 2006
Jabbed
DSU Medical sued Japanese medical supply company JMS and
SE Asian manufacturer ITL for
direct, inducement, and contributory infringement of
5,112,311 and
5,266,072,
which claim a guarded winged-needle device that reduces the risk of getting
stuck with the needle. The defendants avoided getting stuck with claims 46-47
and 50-52 of '311 by proving invalidity, but JMS got jabbed $5 million for
infringing '311 claims 49, 53-54. Though long-winded in doing so, the CAFC (04-1620)
wholly concurred with the trial court.
Posted by Patent Hawk at 11:09 AM | Claim Construction | Comments (0)
October 10, 2006
Power Up
Power
Integrations zapped Fairchild Semiconductor for willfully infringing four
patents. Tuesday, a Delaware jury awarded almost $34 million in damages, at a
strikingly high 15% "reasonable" royalty rate.
Posted by Patent Hawk at 10:50 PM | Damages | Comments (0)
October 2, 2006
Blowup
Aero Products,
which makes & sells inflatable air mattresses, sued
Intex Recreation for patent (5,367,726) and trademark
infringement. Aero won both, and Intex appealed (CAFC
05-1283). There
was a claim construction dispute of interest, as well as an award of double damages
on appeal.
Posted by Patent Hawk at 2:00 PM | Damages | Comments (0)
September 23, 2006
Taking the Fifth
It can be
disgustingly impossible to hold the government accountable. Here we have a tale
of evasion by the U.S. government, that the Fifth Amendment's takings clause no
longer applies to patents, sanctioned by the federal courts (CAFC
04-5100), with a
vigorous dissent by renowned gadfly Judge Newman.
Continue reading "Taking the Fifth"
Posted by Patent Hawk at 7:42 PM | Damages | Comments (2)
August 18, 2006
Tissue Issues
Cook
Biotech, exclusive licensee, and Purdue Research Foundation, owner of
5,554,389, sued ACell for infringement. In the appeal (CAFC
05-1458), there was
a significant issue of claim construction, an interesting insight into seeking
damages, and an applied corollary to the "all limitations" rule in figuring
infringement under the doctrine of equivalents.
Continue reading "Tissue Issues"
Posted by Patent Hawk at 12:33 PM | Case Law | Comments (0)
July 28, 2006
Prudent Rambus
Rambus
took the bird in the hand, accepting a lowered damages award in its infringement
case against Hynix Semiconductor for infringing computer memory patents.
Continue reading "Prudent Rambus"
Posted by Patent Hawk at 3:08 PM | Damages | Comments (0)
July 19, 2006
Rambus Damages Axed
Rambus
successfully sued Hynix Semiconductor for patent infringement, and was awarded $307
million in damages by a jury. Calling that sum "exaggerated," presiding judge
Ronald Whyte reduced the award (court
order) on Monday to $133.6 million.
Continue reading "Rambus Damages Axed"
Posted by Patent Hawk at 12:44 PM | Damages | Comments (0)
July 7, 2006
Willful TV
In
June, DirecTV got beamed
$78.9 million for infringing
5,404,505, a Finisar patent on digital
transmission. Now DirecTV has been found to have willfully infringed, adding $25
million to the tab, plus 6% interest since April 4, 1999 ($12m), and an ongoing
royalty of $1.60 per set-top box until the patent expires in 2012.
Posted by Patent Hawk at 11:46 PM | Damages | Comments (0)
April 19, 2006
Universal Remote Control
Phillips
sued Contec and its suppliers for infringing two patents related to universal remote controls. The appeals court (CAFC
05-1351) upheld the Delaware district
court's summary judgment split decision based upon claim construction.
Continue reading "Universal Remote Control"
Posted by Patent Hawk at 1:40 AM | Claim Construction | Comments (0)
April 13, 2006
Desperate Victory
TiVo
pulled out a $74 million win from larger rival EchoStar Communications in patent-holder
heaven, the Eastern District of Texas, but the victory smacks of desperation.
Continue reading "Desperate Victory"
Posted by Patent Hawk at 8:55 PM | Damages | Comments (0)
January 24, 2006
Blunt Instrument
United
States Surgical appealed a lower court patent infringement decision in favor of
Applied Medical over
5,385,553, feeling a bit put out about the $64.5 million judgment for
enhanced willful infringement damages, the vig (known as "interest" to you non-mafioso), and attorneys fees.
Scalpel not in evidence, the CAFC (05-1149)
used a blunt instrument.
Continue reading "Blunt Instrument"
Posted by Patent Hawk at 11:18 AM | Damages | Comments (0)
July 8, 2005
Hypothetical Projections
Honeywell sued Hamilton Sunstrand Corp. (“HSC”) for patent infringement. Never mind the technicalities; the juicy fruit relates to infringement damage calculation, specifically "...the question presented to the court is whether sales projections that were unavailable at the time infringement began may be used as a royalty base to calculate damages." (District of Delaware July 5, 2005 decision in case 03-1153)
Continue reading "Hypothetical Projections"
Posted by Patent Hawk at 12:00 AM | Damages | Comments (1)
April 26, 2005
Patent Infringement Damages Out of Line
Last Saturday, in advocating changes in patent law to grant leniency for patent infringement, Sanjay Prasad, Chief Patent Counsel for Oracle, asserted that the courts have been awarding damages for infringement that are out of line with the patent's real value. "No reasonable business person would ever agree to" pay those sums in licensing fees, Prasad observed at a conference sponsored by the Association for Competitive Technology, to which a murmur of "duh" was heard in the room. "There's a large distortion between the value provided realistically, and how that comes out in court." Sanjay presented no evidence to support his assertion.
Continue reading "Patent Infringement Damages Out of Line"
Posted by Patent Hawk at 1:32 AM | Damages | Comments (0)
March 24, 2005
Infringement Damages Primer
Courts are willing to grant a patent holder compensation for all economic
losses that are reasonably attributable to infringement, but the patentee shoulders the burden of convincing the court of the causality and measure of
loss. More often than not, damage assessment is simplified to a reasonable
royalty.
Continue reading "Infringement Damages Primer"
Posted by Patent Hawk at 11:07 AM | Damages | Comments (0)
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