Economics + Law = Damages
The CAFC published a patent infringement opinion on damages that involves use of settlement license agreements.
The court explained that one needs to look at each litigation settlement license agreement, and the circumstances around each, to determine relevance:
Is this the new case to cite for issues regarding settlement agreements?
The second is R+L Carriers v. Qualcomm which discusses the language “substantially identical” with respect to whether claims have changed through reexamination. This is relevant for when damages could start to accrue.
The CAFC issued an interesting opinion which affirmed a $0.50 per unit sold royalty rate but did not allow that rate to be applied to products made and used outside of the United States.
This case is particularly interesting because it appears to touch on the current thinking on the book of wisdom. It also suggests (as have other cases in the past) that the time of the hypothetical negotiation is of paramount importance. The opinion reviews several issues regarding expert qualifications, royalty calculations, and enhanced damages.
Here is a quote from the opinion citing to the recent AstraZeneca case:
The opinion discusses several damages issues, including extraterritorial reach of patent damages, specifically limitations of that reach. It also discusses the exclusion of a damages expert who opined that the royalty rate should be 4 times the price of the accused items. Specifically the CAFC noted that the exclusion of the expert was merited given that:
This case provides a potential cap on damages and thus a response to Stickle v. Heublein where damages may be higher than an infringer’s profit and higher than the price set on the infringing product.
