I mentioned previously that there’s really no “additur” by which a judge can scratch out the damages number awarded by a jury as insufficient under the evidence and increase it. While a trial court can effectively reduce a verdict via “remittuitur” or via JMOL/MNT practice, the reverse isn’t true. But to use an overused word, patent cases are exceptional in that judges do have the ability to “enhance” damage awards under 35 USC 284 where a jury has made a finding of willful infringement. Such was the case in
There are two directions a patent case can go following a verdict – up or down. And they get two opportunities at each. First, the verdict can be affirmed or it can be set aside. Then the bog-standard 285 motion asserting that the case is exceptional determines if it goes up or stays where it is. (In willful infringement cases there’s a third option, but that’s for a later post). In this case, the Court granted the first motion setting aside the plaintiff’s verdict, but denied the second.