Following a jury verdict awarding damages for past infringement, the court and the parties have to work out what the appropriate form of relief for any future infringement will be, taking into account the availability of an injunction and the appropriate rate for any royalties applied to ongoing activity. In a recent opinion an EDTX judge addressed the situation where no injunction was sought, no enhanced damages issue was presented, and the sole issue was what royalty rate should be applied to future activity.
A recurring issue in patent cases is when a technical expert’s opinion is consistent with the Court’s claims construction, and simply opines whether infringement exists under the construction, and when it is not. A recent case provided three useful examples where an expert did – but in some cases did not – proffer opinions that were consistent with the claim constructions the jury would have to consider, or was otherwise permissible.
My new favorite verdict form is the one from this case, where the foreperson wrote in “no infringement”. Alas for the defendants, they wrote in $15 million in damages and $2 million on attorneys fees on the rest of the claims, as detailed below.
There are not a lot of personal jurisdiction cases since Daimler AG v. Bauman that provide a current analysis of the law on personal jurisdiction challenges, so this recent opinion from the EDTX is useful for those wanting to update their standards.
One day a year I have to spell things right, and today was that day. Congratulations to our Marshall Chamber of Commerce team for pulling off the win at the annual Marshall – Harrison County Literacy Council spelling bee. We made it past 12 other teams, and raised some good money for local literacy efforts. As Bryan Partee said at the beginning of the competition, “when you can read, every book is a children’s book.” I like that. (To answer your question, they’re fire ants – Marshall’s Fire Ant Festival is just a few weeks away).
Speaking of spelling, “plausible” can be a pretty hard word, but a recent opinion by Judge Payne uses it in a sentence, and provides some guidance on when a motion to dismiss a complaint for failure to state a claim because an assertion is not “plausible” should be denied.
The other Sherman holding of interest outside the litigation world recently was Judge Mazzant’s ruling invalidating the Obama administration’s rule expanding overtime protections for white collar workers, discussed below.
Changes in the patent docket locally in the last year and a half or so have meant more trials involving competitors – which means different issues regarding remedies. A “post verdict docket control order” order issued earlier today in such a case provides a look at what sorts of proceedings are normal in such cases after a verdict.
A Marshall jury in Judge Rodney Gilstrap’s court rendered a verdict Friday afternoon in a patent trial involving side scan sonar technology. (Whether it involved this image of the German aircraft carrier Graf Zeppelin at the bottom of the Baltic Sea I can’t say, but as the plaintiff is a Norwegian company, I like to hope that it did, because as side scan sonar images go, it’s pretty cool). The verdict is interesting because the damages award includes components for a running royalty (as opposed to a lump sum) and lost profits as discussed below.
I wanted to provide a brief update for those interesting in recent activity in the Ezekiel Elliott case pending before Judge Mazzant in Sherman.
While the case is interesting to many due to its subject matter, the Court’s most recent order provides a helpful and potential useful analysis not just of injunctive relief, but of review of an arbitrator’s decision for “fundamental fairness.”
One of the EDTX cases being handled by Judge William C. Bryson of the Federal Circuit has an upcoming hearing on whether the defendant should be held in contempt for not making ordered royalty payments as to certain products following a jury verdict of trade secret misappropriation (later affirmed on appeal and cert denied). Judge Bryson recently issued a couple of orders in connection with that hearing that readers might find of interest.