News & Analysis as of

Calculation of Damages

Accounting of profits offers significant benefits to patent owners

by Smart & Biggar on

The Canadian “accounting of profits” remedy for patent infringement, which is not available in the U.S., provides a potentially significant opportunity for companies with Canadian IP rights. Recent court decisions have...more

Federal Court Denies Reinsurer’s Post-Trial Motions In Long-Running Dispute Which Resulted In A Verdict In Its Cedent’s Favor

by Carlton Fields on

A federal district court has denied both a motion for judgment as a matter of law or for a new trial and a motion to correct the interest calculation filed by Fireman’s Fund Insurance Company after a jury award of $35 million...more

Louisiana Third Circuit Issues Decision on the Procedure for Settlements in Cases Governed by Act 312

by Liskow & Lewis on

In a decision issued today, the Louisiana Third Circuit Court of Appeal issued the first appellate court opinion addressing the procedure for approval of settlements in cases governed by Act 312 (La. R.S. 30:29). Britt v....more

State Supreme Courts Falling In Line On Arbitration

Despite how often I talk about whack-a-mole and the tug-of-war between the state courts and SCOTUS on arbitration, the truth is that the majority of state supreme courts follow SCOTUS’s arbitration precedent (whether holding...more

Federal Court of Appeal dismisses Teva’s levofloxacin damages appeal

by Smart & Biggar on

On February 8, 2018, the Federal Court of Appeal issued public reasons for its decision dismissing Teva’s appeal relating to the damages and costs awarded against it for its infringement of Janssen’s patent for levofloxacin...more

Updates On Verdicts About Which We Reported In 2017

We reported on a bunch of eye-popping punitive awards in 2017. There have been further developments in a number of those cases. Though we may provide more comprehensive discussions of some of those developments, here is a...more

Court Orders Jacobson Remand to Determine Reasonableness of $10 Million Fine

In United States v. Zukerman, No. 17-948 (2d Cir. Feb. 6, 2018) (ALK, RAK, RSP) (summary order), the appellant, Morris Zukerman, challenged the substantive and procedural reasonableness of his sentence, which was imposed...more

Federal Circuit Approves Apportioning Damages through a Thorough and Reliable Analysis of the Royalty Rate

On January 12, 2018 in Exmark Manufacturing Co. Inc., v. Briggs & Stratton Power Products Group, LLC, the Federal Circuit once again addressed the issue of apportioning damages, an area of the law that continues to evolve....more

Court Orders Jacobson Remand to Determine Reasonableness of $10 Million Fine

In United States v. Zukerman, No. 17-948 (2d Cir. Feb. 6, 2018) (ALK, RAK, RSP) (summary order), the appellant, Morris Zuckerman, challenged the substantive and procedural reasonableness of his sentence, which was imposed...more

Design Patent Damages — Four New Factors for Making the Determination

The Northern District of California has asked the parties in the everlasting Apple v. Samsung Electronics design patent litigation (No. 11-01846) to consider four new factors in arguing whether Apple’s approximately $400...more

Eigen schuld, dikke bult (Dutch)

by Dentons on

In many professional liability cases, a claim is claimed by an injured party to the effect that the relevant professional is liable to the injured party and must compensate his or her loss "to be made more detailed by state"....more

The Guide to Damages in International Arbitration: Strategic Issues in Employing and Deploying Damages Experts

by WilmerHale on

Parties frequently engage experts to assist in developing, calculating and presenting their cases on damages to tribunals in international arbitration. Such experts may specialise in economics, finance or accounting, or...more

The Guide to Damages in International Arbitration: Introduction

by WilmerHale on

There are three types of arbitrators: those who understand numbers and those who don’t. This old joke, adapted to the international arbitration community and repeated at conferences, typically receives nervous laughter...more

Damages Apportionment For Infringing A Method Claim When The Smallest Saleable Unit Performs Infringing and Non-Infringing...

The Federal Circuit’s damages apportionment jurisprudence is an ever-evolving area of the law. On January 10, 2018, a three judge panel of the Federal Circuit revisited the issue in connection with a patent covering a method...more

Toxic Tort Monitor – January 2018

by Husch Blackwell LLP on

A Review of 2017 Personal Jurisdiction Decisions - In 2017, the U.S. Supreme Court in cases such as BNSF Railway Co. v. Tyrrell and Bristol-Myers Squibb Co. v. Superior Court of California continued the trend that began in...more

Top 10 Highlights of Canadian IP Law and Practice in 2017

by Smart & Biggar on

2017 was a year of significant developments to Canadian IP law and practice, with important court decisions and numerous legislative amendments. We have taken the opportunity to review the top 10 highlights from the past...more

Rx IP Update - 2017 Highlights in Canadian Life Sciences IP

by Smart & Biggar on

The year 2017 was one of the most significant years for Canadian Life Sciences IP and Regulatory Law in Canada’s history. The year saw major developments in patent linkage, patent term, and substantive patent issues. As we...more

Looking Forward: Canadian Class Actions in 2018

by Bennett Jones LLP on

The past year saw another flurry of Canadian class action activity. Courts across the country rendered significant decisions that should give companies doing business in Canada cause for both concern and optimism. While the...more

Finjan, Inc. v. Blue Coat Systems, Inc.

by Knobbe Martens on

Federal Circuit Summaries - Before Dyk, Linn, and Hughes. Appeal from the Northern District of California. Summary: Claims directed to behavior-based virus scanning, as opposed to the traditional code-matching method,...more

Federal Circuit Review - December 2017

by Knobbe Martens on

Claims Directed to Methods for Streaming Audiovisual Data Held Unpatentable Under § 101 - In Two-Way Media Ltd v. Comcast Cable Communications, Appeal Nos. 2016-2531, 2016-2532, the Federal Circuit affirmed the district...more

Defence + Indemnity: December 2017: IV. QUANTUM/DAMAGES ISSUES

by Field Law on

IV. QUANTUM/DAMAGES ISSUES - A. Where a plaintiff is held to suffer a negative loss (i.e. has had a “gain”) under one head of damage, that gain is not to be offset or deducted from another head of damage where the...more

Avoid Doubling FLSA Overtime Damages with Proper Analysis and Documentation

Benjamin Franklin once advised that an ounce of prevention is worth a pound of cure. This axiom is still relevant today, especially in the context of the Fair Labor Standards Act (FLSA). As originally written, the FLSA...more

All-Or-Nothing Damages Strategy Leads To No Damages Despite Admission Of Patent Infringement

by Orrick - IP Landscape on

Promega Corp. v. Life Technologies Corp., Fed. Cir. (November 13, 2017) - The Federal Circuit affirmed a Wisconsin district court’s decision to overturn the $52 million award a jury awarded to Promega Corporation...more

All-or-Nothing Damages Strategy Leaves Promega with Nothing

The Federal Circuit’s recent decision in Promega Corp. v. Life Technologies Corp. is a cautionary tale that failure to present evidence of damages closely tied to each alternative basis of liability may result in a hollow...more

Federal Circuit Review - October 2017

by Knobbe Martens on

Federal Circuit Denies En Banc Rehearing in Mentor Graphics v. EVE-USA - In Mentor Graphics Corp. v. Eve-USA, Inc., Appeal Nos. 2015-1470, 2015-1554, 2015-1556, the Federal Circuit denied Synopsys’ and EVE’s petition for...more

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