IP Blog
Patent Damages
How Important is Compliance with the Marking Statute? The Federal Circuit Continues to Say It Is Pretty Important.
When an accused infringer admits to knowledge of potential infringement, but the commercial embodiment of the patent fails to comply with the marking statute, 35 U.S.C. § 287, what date should be used for calculating damages? The Federal Circuit says that if a product is not compliant with § 287, damages are calculated from the date of actual notice regardless...
35 U.S.C. § 287(a) and the Burdens of Providing Notice for Pre-Suit Damages: Packet Intelligence LLC, v. Netscout Systems, Inc.
In Packet Intelligence LLC, v. Netscout Systems, Inc. the Federal Circuit reversed a jury determination for pre-suit damages, and vacated an enhancement of such damages, for Netscout’s infringement of U.S. Patent 6,665,725, U.S. Patent 6,839,751, and U.S. Patent 6,954,789, all owned by Packet Intelligence. The patents at issue were all directed to monitoring packets exchanged over a computer network. The...
Willful Infringement Allegations Require More Than Conclusory Statements
In a recent decision from the United States District Court for the District of Nevada, the court granted a motion to dismiss willful infringement allegations for lacking plausible factual allegations. IP Power v. Westfield , No. 2:19-cv-01878-MMD-NJK (D. Nev. June 4, 2020). This case centers around U.S. Patent No. 6,817,671, which is directed to a collapsible, reclining camp chair with...
No Attorney Fees for § 101 Dismissal: Data Scape Ltd. v. Spotify USA Inc.
Despite a refiled case and a subsequent dismissal for ineligible subject matter, plaintiff Data Scape escaped paying attorney fees to defendant Spotify in a recent decision from the Central District of California. Data Scape Limited v. Spotify USA Inc. et al., No. CV 19-4367 PSG (SKx) (C.D. Cal. Dec. 3, 2019). Data Scape is apparently a patent assertion entity, and...
Another Unsupported Patent Royalty Rejected
Expert testimony on patent royalties that is unsupported by evidence is excluded. Dominion Assets LLC v. Masimo Corp., Case No. 14-cv-03002 (N.D. Cal. Aug. 1, 2018). Plaintiff Dominion alleged infringement by Defendant Masimo of U.S. Patent Nos. 5,379,764 and 5,460,177, which are directed to radiation measurement techniques for blood concentration. Dominion presented expert testimony on a reasonable royalty. Masimo filed a...
Non-Patented Features and the Entire Market Value Rule
Evidence that a patented feature drives customer demand is insufficient to justify damages under the entire market value rule (EMVR) when non-patented features may drive customer demand. Power Integrations, No. 2017-1875 (Fed. Cir. July 3, 2018). The Federal Circuit vacated a damages award for patent infringement from a jury that relied on the EMVR, noting that while the plaintiff showed...
Reasonable Patent Royalties Require Proper Apportionment
Damages for patent infringement must be apportioned to the infringing features of an accused product and supported by substantial evidence. Finjan, Inc., v. Blue Coat Systems Inc., No. 2016-2520 (January 10, 2018) (precedential). After considering subject matter eligibility and infringement of the asserted patents, the Federal Circuit reviewed the damages awarded by the jury, reversing awards unsupported by substantial evidence...
Detail Counts to Support Patent Damage Analysis
In Yodlee v. Plaid Technology, No. 14-1445-LPS-CJB (D. Del. 2017), Judge Leonard Stark gave guidance on the boundaries of an admissible opinion for a reasonable royalty analysis in a patent case. Yodlee v. Plaid involves a patent relating to a method and apparatus for gathering summary information from websites and presenting that information as HyperText Markup Language. The Plaid software...
Damages for Design Patent Infringement: What Is an "Article of Manufacture?"
On December 6, 2016, the U.S. Supreme Court issued its long awaited decision in Samsung Electronics Co. v. Apple Inc. The issue in Samsung v. Apple was whether 35 U.S.C. § 289 requires that design patent damages of a multi-component product must always lie in the end product sold to the consumer. The Court, in a unanimous decision, held that...
Determining Willful Patent Infringement: Ramifications of Halo Pulse Through the Courts
The Federal Circuit recently vacated and remanded a lower court’s holding that a patent infringement defendant could not have willfully infringed as a matter of law. Alfred E. Mann Found. for Sci. Research v. Cochlear Corp. (Fed. Cir. Nov. 17, 2016). The lower court’s decision was based on the objective standard prong of the now defunct two-part test of In...