Soverain Software v. Victoria's Secret, et al., 6:09cv274 (8/9/12)
Judge: Leonard Davis
Holding: Motions for Judgement as a Matter of Law DENIED; Motion for Fees and Sanctions DENIED; Motion for Royalties and Interest GRANTED
Man, this is like finding money in between the sofa cushions - three JMOL rulings I get to talk about.
Last November, a Tyler jury in Judge Davis' court found for Plaintif Soverain Software. The jury found that the two Defendants, Avon Products and Victoria's Secret infringed claims 34 and 51 of the ‘314 Patent and claims 15, 17, and 39 of the ‘492 Patent. The jury found that none of the asserted claims were invalid as anticipated or obvious. Finally, the jury awarded $8.7 million in damages against Avon—$8,215,000 for the avon.com website and $485,000 for the youravon.com website—and $9.2 million in damages against Victoria’s Secret for the victoriassecret.com website.
Judge Davis rejected the Defendants' divided infringement, patent misuse, prosecution history estoppel and damages arguments. A remittitur issue was also presented, with the plaintiff arguing that the jury simply transposed the numbers for the two Avon entities on the verdict form. Judge Davis agreed that the allocation did not match the evidence presented, but observed that ['t]he discrepancy is easily explained by Defendants' closing arguments." Specifically, the demonstrative used by the defendant in closing transposed the numbers its expert had testified to. But this is where it gets weird. Judge Davis says the following:
Defendants’ counsel informed the jury that the amounts were transposed. Tr. Trial 101:17–21, Nov. 18, 2011. However, counsel then stated that the demonstrative was correct. Id. at 101:22–102:3. Finally, counsel again asserted that the numbers on the slide were reversed. Id. at 102:6–12.
"That counsel transposed these numbers during closing arguments is understandable," Judge Davis wrote. "Likewise, it is understandable that the jury transposed its damages awards for youravon.com and avon.com. The $8,215,000 award corresponding to avon.com is not supported by the evidence, and both parties seemingly acknowledge this." But Judge Davis noted that "the jury’s Avon award—after transposition—almost mirrors the 95%–5% division of online orders between the two sites," and accordingly ordered the numbers transposed, citing his authority under FRCP 60(a) to correct clerical mistakes “in a judgment, order, or other part of the record.” The corrected verdict, he concluded, is supported by substantial evidence in the record, and Defendants’ request for remittitur was therefore denied.
The Court next denied the motion for new trial, which complained of the exclusion of an online bookstore website because it was not corroborated.
Soverain, for its part, asked the Court to declare the case "exceptional" under 35 U.S.C. 285, and for an award of fees and expenses. Judge Davis denied that motion, finding the grounds asserted insufficient. He did, however, award pre and postjudgment interest and postjudgment damages. He also awarded postjudgment royalties, rejecting Soverain's proposed 4x multiplier in favor of a 2.5x multiplier for ongoing sales.