Enhanced Damages – 35 USC 284

“Flagrant” – enhanced damages, exceptional case status & injunctions

msmithEnhanced Damages - 35 USC 284, Exceptional Case award - 35 USC 285, Injunctive Relief, Judge Robert W. Schroeder III, Tyler

I have posted many times on the Tinnus v. Telebrands litigation, which involves water balloon patents. Another order is now out, this time involving postverdict motions including recovery of enhanced damages and attorneys fees for “exceptional” case status, as well as and entry of a permanent injunction. It is one readers will want to study, as it contains some actions that are extraordinary – even by patent litigation standards. When a court’s order uses the term “flagrantly” multiple times, you know things are about to get very interesting. There is much to be learned here, so let’s begin …

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VirnetX – JMOL, MNT, enhanced damages & attorneys fees rulings

msmithEnhanced Damages - 35 USC 284, Exceptional Case award - 35 USC 285, JMOL rulings, Judge Robert W. Schroeder III, Tyler

A trip to the West Coast for a mediation kept me from posting this earlier, but Judge Schroeder’s unredacted opinion in the VirnetX case resolving the postverdict motions is now out, and provides the latest analysis on many issues of interest to practitioners, including most notably enhanced damages, as none were awarded.

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Ericsson $75 million verdict reinstated; damages enhanced $25 million; no attorneys fees

msmithCommentary, Enhanced Damages - 35 USC 284, Exceptional Case award - 35 USC 285, Judge Roy S. Payne (USMJ), Marshall

After a four-day trial in December, a Marshall jury in Judge Roy Payne’s court found that Defendant TCL willfully infringed claims 1 and 5 of United States Patent No. 7,149,510 asserted by Plaintiff Ericsson by selling phones and devices equipped with the Google Android operating system, and the jury awarded $75 million as a lump sum royalty.

The court previously ordered a new trial on damages after finding Ericsson’s damages theory unreliable, but last Thursday the Court reconsidered that order, reinstated the jury’s verdict in full, and resolved all other remaining disputes, i.e. TCL’s motions for judgment as a matter of law, and Ericsson’s motions for enhanced damages and attorney’s fees.

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Celebrating Lexington Day With an Enhancement/Exceptional Opinion

msmithEnhanced Damages - 35 USC 284, Exceptional Case award - 35 USC 285, Judge J. Rodney Gilstrap, Marshall

Well, it’s certainly both an enhanced and exceptional day for me, as Paul Allen’s team located the wreck of the carrier Lexington in the Coral Sea, 76 years after it sank, along with – to date – 11 of the 35 aircraft it had on board when it went down.  

Yes, I’m the crazy uncle that makes handcrafted wood Lexington toys for his cousins’ kids – as well as the occasional plastic model of one – but you know, every family has one of those, doesn’t it?  So today, the Lexington comes with me to the office to celebrate.

Also celebrating this morning is plaintiff Eidos Display, which, following a lengthy campaign, won a 2x enhancement of its recent $4.1 million jury verdict against competitor Chi Mei Innolux. Like the Battle of the Coral Sea both sides won something, with Innolux defeating Eidos’ request for attorneys fees under Section 285.  So let’s analyze what happened, note some significant comments in the opinion, and say hello to LBJ, Mr. Sam, and some East Texas lawyer sayings along the way.

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VirnetX Postverdict Motions Analysis – JMOLs, Enhanced Damages & Attorney’s Fees

msmithEnhanced Damages - 35 USC 284, Exceptional Case award - 35 USC 285, Experts, JMOL rulings, Judge Robert W. Schroeder III, Jury instructions, Tyler

It’s been a busy few weeks finalizing some other projects, including tests, papers, seminar presentations and the like (and I finally finished that anime-ish P-40 for Parker with accurate paint colors), but I’m finally able to turn more of my attention to some of the very interesting activity in the district in the last few weeks.  And speaking of interest, there are few cases that have generated more than VirnetX v. Apple, which just had its most recent trial’s postverdict motions come out. Most legal news is interested in the bottom line – that the verdict amount of $302 million resulted in a $439 million judgment, but for practitioners the analysis of how it got there is of great interest – I am not the only one out there that enjoys a good JMOL.  So I wanted to work through the motions, but only after a short … well, that’s a lie, it’s not going to be short – procedural history.

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More EDTX Data Points on Enhanced Damages, Exceptional Case Fee Awards and Ongoing Royalties

msmithEnhanced Damages - 35 USC 284, Exceptional Case award - 35 USC 285, Sherman

Several recent opinions out of the EDTX provide litigants with more data points on enhanced damages – when are they appropriate and when are they appropriately set aside – on how future royalties are calculated, and and on when Section 285 awards of attorneys fees in “exceptional cases” are appropriate.  They also provide a helpful analysis of which non-taxable fees and expenses are not recoverable under Section 285.

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284/285 Time: Orders on Motions for Enhanced Damages and Attorneys Fees

msmithBeaumont, Enhanced Damages - 35 USC 284, Exceptional Case award - 35 USC 285, Judge Ron Clark

In an average year about fifteen patent cases are tried in the Eastern District of Texas.  Statistically, about half are complete defense verdicts, and of the remaining ones, only a few have willfulness findings, so it’s a rare case that presents both a Section 284 claim for enhanced damages and a Section 285 claim for exceptional cases status. When we do have them it allows analysis of which conduct supports (or doesn’t) an award, since courts try to ensure that a party isn’t inadvertently penalized twice for the same conduct.  But a recent case out of Beaumont presents both, and provides some useful insight into a trial court’s calculation of enhanced damages, as well as the more frequently presented question of whether a case is “exceptional” for Section 285 purposes. 

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