Verinata Health, Inc. & Illumina vs. Ariosa Diagnostics (Verdict January 25, 2018)

A jury just awarded Illumina damages of $15.7 million for the infringement of the ‘794 patent and $11 million for infringement of the ‘430 patent.

Prior to the jury verdict, defendant Ariosa submitted a Daubert motion on plaintiff damages expert that was denied; and also submitted a JMOL on damages (in part) that was not granted. One critical issue is that the JMOL alleges Mr. Malackowski violated the law of demand when he asserted that accused products sold by the defendant at a lower price would have been sold, in his but-for world, at a higher price. The motion states:

The final judgment will be an interesting read. Ariosa’s JMOL on lost profits damages is compelling. Interestingly, the jury verdict form did not allow for a breakdown of a damages award between lost profits and reasonable royalty amounts. There was only one line for the jury to write in its damages award (in words and in numbers), but there was no area to specify the type of royalty or the amount of lost profits. It is unclear whether such an ambiguous form will impact Judge Illston’s post-trial rulings.

Sonos v. D&M Holdings (December 8, 2017)

Judge Bryson in the District of Delaware excluded an expert opinion not once, but twice, over violation of the entire market value rule. Heavily citing to LaserDynamics and Uniloc, Judge Bryson notes that no matter what apportionment is performed, if the royalty base includes more than the SSPU, then the analysis is fatally flawed.

Arctic Cat v. Bombardier Rec. (December 7, 2017)

The CAFC issued this opinion regarding marking, ongoing royalties, willfulness and damages. The court reviewed the Daubert motion and found that the court did NOT err in NOT excluding the expert analysis which involved comparing an infringing product to a non-infringing product. Citing Apple v. Motorola the CAFC opined that, “factually attacking the accuracy of a benchmark goes to evidentiary weight, not admissibility.”

The initial rulings on the Daubert Motions and Motions for Summary Judgment are good reads as well.

Prism v. Sprint (March 6, 2017)

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?

Carnegie Mellon v. Marvell (August 4, 2015)

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:

Westerngeco v. Ion Geophysical (July 2, 2015)

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.