Intellectual Property: Valuation, Exploitation and Infringement Damages 2013 Cumulative Supplement, 11th Edition

CHAPTER 45A

CONTINUALLY EVOLVING PATENT DAMAGES (NEW)

  45A.1 POST-VERDICT ROYALTY RATES

  45A.2 OPTIMIZE YOUR PATENTED TECHNOLOGY OR LOSE IT

  45A.3 LITIGATION-BASED LICENSES

As judges make decisions and appeals courts affirm or remand, the determination of patent infringement damages is continually refined. This chapter discusses recent decisions and their impact on the future of infringement damages.

In Paice LLC v. Toyota Motor Corp., an appeals court ruled that post-judgment royalty rate awards, when an injunction is not granted, are not necessarily the same royalty rate that was determined by the jury for past infringement.

In Bard Peripheral Vascular, Inc. v. W. L. Gore, Inc., it turns out that if you don't optimize the implementation of your intellectual property you might just lose it. A recent decision in Arizona District Court denied Bard a permanent injunction because Gore made a better product using Bard's patented technology than Bard, even though Bard and Gore were competitors.

In ResQNet.com, Inc. v. Lansa, Inc., it was determined that the only useful royalty rate evidence for consideration in the hypothetical negotiation was licenses involving the patent at issue that were negotiated as litigation settlements with other parties. In the past, litigation-based license agreements were excluded from consideration.

45A.1 POST-VERDICT ROYALTY RATES

Paice LLC brought infringement action against Toyota Motor Corp., alleging infringement of its patents for a hybrid electric ...