Royalties Patents Patent Litigation

News & Analysis as of

Smartflash v. Apple: After $500M Verdict, District Court Grants New Trial on Damages Based on Improper Use of Entire Market Value...

After a jury returned a verdict against Apple, Apple filed a motion for judgment as a matter of law or a new trial. The district court subsequently notified the parties pursuant to Rule 59(d) that it was considering granting...more

Getting Tangled in the Web of a Hybrid Royalty Clause Part II: Supreme Court Re-affirms Brulotte Decision

In July of 2013, I wrote a blog post about the Ninth Circuit Court of Appeal’s decision in Kimble v. Marvel Entertainment LLC and its effect upon royalty provisions in hybrid IP license agreements. (...) By “hybrid” I am...more

Supreme Court Leaves Post-Patent Expiration Royalty Rule in Place

The U.S. Supreme Court today in Kimble v. Marvel Entertainment, LLC upheld the longstanding Brulotte rule that a patent owner cannot continue to receive royalties for sales made after its patent expires. In a 6-3 decision,...more

IP Newsflash - May 2015 #4

DISTRICT COURT CASES - Eastern District of Virginia Grants Summary Judgment of Noninfringement to Adobe - On May 7, 2015, Judge Brinkema of the United States district court for the Eastern District of Virginia...more

Lost Profits Are Hard to Come By - Warsaw Orthopedic, Inc. et al. v. NuVasive, Inc.

Addressing the issue of convoyed and related sales, the U.S. Court of Appeals for the Federal Circuit, even while affirming the district court with respect to its invalidity and infringement findings, remanded the case for a...more

ITC Section 337 Update - April 2015

Motorola’s Appeal To Ninth Circuit Of A Jury Determination That Motorola Breached Its FRAND Obligation – In a case involving the first time a federal district court judge determined a FRAND royalty rate for standard essential...more

AstraZeneca AB v. Apotex Corp. (Fed. Cir. 2015)

Earlier this month, the Federal Circuit rendered a decision on damages in what may be the last of a long-running series of ANDA cases involving AstraZeneca's Prilosec® (omeprazole) franchise. As set forth in the opinion,...more

Federal Circuit Addresses Damages in the Hatch-Waxman Context

On April 7, 2015, the United States Court of Appeals for the Federal Circuit issued its decision in Astrazeneca AB v. Apotex Corp., No. 2014-1221, affirming an award of a reasonable royalty of 50% in a case arising from the...more

Expert Is Not Permitted to Testify to Alternate Hypothetical Negotiation Dates Where No Hypothetical Negotiation Was Conducted for...

After the parties submitted expert reports in this patent infringement action, Ford objected to Eagle Harbor's damage expert's expected testimony and demonstratives. Ford objected to Eagle Harbor's evidence because it...more

Aqua Shield v. Inter Pool Cover Team – Evidence of Actual Profits Does Not Hold Water in Reasonable Royalty Analysis

The Federal Circuit, in Aqua Shield v. Inter Pool Cover Team, 774 F.3d 766 (Fed. Cir. 2014), recently provided further guidance on the traditional method for assessing the market value of a patent: the hypothetical...more

In SEP Assertion Cases, Apportionment Trumps Entire Market Rule - Ericsson, Inc. v. D-Link Sys. Inc., et al.

Ericsson, Inc. v. D-Link Sys. Inc., et al. - The U.S. Court of Appeals for the Federal Circuit addressed a spectrum of issues surrounding industry standards for electronic devices that wirelessly access the internet,...more

Open Text v. Box: District Court Holds That Box Can Present Damages in the Form of a Fully Paid-Up Lump Sum Payment Even Though...

As the Open Text v. Box patent case gets closer to trial, Open Text sought to preclude Box from asking the jury to award damages in the form of a fully paid-up lump sum that would cover the life of the patents-in-suit. Open...more

The Year Ahead in Patent Law - 2015

With the advent of the America Invents Act (AIA), public perception of frivolous patent litigation, frequently surrounding cases filed by non-practicing entities (NPEs), has received increasing legislative attention. Although...more

Ericsson, Inc. v. D-Link Sys., Inc. Guidance on Determining Damages for Standard Essential Patents

Patents claiming inventions which must be used to comply with certain technical standards (for example, the Wi-Fi standard or standards for 3G) are referred to as standards-essential patents or “SEPs”. There has,...more

IP Newsletter - January 2015

In This Issue: - Castle Defense: Federal Circuit Reinforces Patent Damages Gate in VirnetX - Standards Patent Licensing: Always Apportionment, Sometimes Stacking - Supreme Court to Consider Good-Faith...more

Daubert Challenge to Damage Expert Denied Where Contested Matters Were for Cross-Examination and Not Proper for Exclusion

In this patent infringement action, Apple challenged the opinions of the plaintiff's damage expert on several bases, including the determination of a royalty rate based on the price of third-party applications....more

Supreme Court Corner: Q4 2014

KIMBLE V. MARVEL ENTERPRISES, INC. Patent Licensing - Cert. Pending - Issue: Whether the Supreme Court should overrule Brulotte v. Thys Co., which held “a patentee’s use of a royalty agreement that projects...more

Supreme Court 2014 Patent Preview

On average, the U.S. Supreme Court historically hears fewer than one patent case each term. For example, in the 14 years between 1982 and 1995, the Court decided only five patent cases. In the seven years between 1995 and...more

Federal Circuit Provides Important Guidance in RAND Disputes

On Dec. 4, 2014, the Federal Circuit issued a much-anticipated opinion in Ericsson, Inc. v. D-Link Sys., Inc., Nos. 2013-1625, -1631, -1632, -1633 (Fed. Cir. Dec. 4, 2014). The panel—consisting of Judges Kathleen O'Malley,...more

License Definition Trumps Need for Actual Infringement Finding

Cellport Systems, Inc. v. Peiker Acustic GMBH & Co. KG - In a case addressing whether royalties are due under a patent licensing agreement even if the products are not covered by the patents, the U.S. Court of Appeals...more

The Federal Circuit’s VirnetX Ruling Continues Its Focus On Requirements For Proving Patent Damages

The U.S. Court of Appeals for the Federal Circuit historically has afforded litigants substantial leeway in applying economic theory to establish damages in patent infringement cases, as long as the theories are based on...more

Convenience Trumps Potentially Higher Royalties

In re Nintendo of America, Inc. - The U.S. Court of Appeals for the Federal Circuit vacated a denial of a motion to sever and transfer, directing the district court to grant petitioner’s motion because the transferee...more

VirnetX v. Apple: Court Grants Enhanced Ongoing Royalty Based on Disparity Between Position at Trial and Position Post-Judgment on...

On August 11, 2010, VirnetX filed suit alleging that Apple and several other defendants infringed several U.S. Patents, which generally describe a method for transparently creating a virtual private network ("VPN") between a...more

U.S. Supreme Court Holds That Patentees Bear the Burden of Proof of Infringement in DJ Actions Brought by Licensee

A patentee bears the burden of proving infringement when a licensee seeks a declaratory judgment of non-infringement, the U.S. Supreme Court has held. The ruling reversed the Federal Circuit and clarified declaratory...more

Royalty Awarded After Remittitur More Appropriately Based on Percentage Than Dollar Figure Per Unit Sold to Avoid Windfall to...

In February 2013, Tomita Technologies USA, LLC ("Tomita") went to trial before a jury against Nintendo Co., Ltd. ("Nintendo"). In March 2013, the jury returned a verdict in favor of Tomita in the amount of $30.2 million,...more

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