Order on Judge Clark's future damages order

Ariba, Inc. v. Emptoris, Inc., --- F.Supp.2d ----, 2008 WL 2906916(E.D.Tex. Jul 29, 2008) (NO. CIV.A.9:07CV90)
Judge: Ron Clark
Holding: Hard to say.
Several weeks ago, Judge Clark sent out orders in numerous patent cases indicating that he would consider submitting to the jury a question on future damages in patent cases, and asking for any objections.  In this case, which is set for trial in October, the parties responded, with one party not objecting "subject to the court providing an additional instruction to the jury regarding injunctive relief."  The other, however did object, alleging that "because it is entitled to a permanent injunction almost per se if the jury finds infringement, submission of a question on future damages would both confuse the jury and endanger [the party's] right to seek injunctive relief."
In a detailed analysis of the issue of damages in general and future damages in particular, which I haven't got time to post on at the moment, Judge Clark disagreed with the latter position, but concluded that "the proposed jury question in the court's July 9, 2008 Order is only one way in which this issue may be submitted. In formulating their jury instructions, the parties should consider whether the jury should be instructed regarding a future reasonable royalty rate, lost profits, price per unit, or some other appropriate measure of future damages. Of course, the instructions and question(s) will depend on the evidence submitted, and the theories of recovery pending at that time."