I have an article that readers might be interested in in this month's "In House Counsel" supplement to Texas Lawyer, which this month focuses on intellectual property. The article, "Federal Circuit Polices Damages for Patent Infringement" is a brief overview of recent Federal Circuit caselaw that has changed the landscape for damages in patent cases. The topics include:
- Limiting the royalty base - focusing primarily on Laserdynamics;
- Focus on the claimed invention - again, Laserdynamics;
- Factual basis for the royalty rate - Uniloc; and finally
- Admissibility of settlement licenses - ResQNet.
I have become particularly interested in the damages side of some of the cases I have been working on recently, and had the chance to put on our damages expert last week in the Alexsam v. Barnes & Noble trial to try out some of the ideas I have had about what on the damages side local jurors are interested in. Sadly (okay, not very sadly) as the jury found no infringement, I'll never know how persuasive a case we made for our damages model, which was about 19 times smaller than that proposed by the plaintiff. Fortunately (okay, not very fortunately) we get to try this case five more times so maybe we will find out what number a local jury finds appropriate.
Although a major focus of my article is on the increased importance that the new cases give to the court's pretrial determination of what expert testimony on damages is admissible at trial, it is always interesting to see what the experts actually say and are crossed on at trial. That helps greatly in going back and seeing what information they really need from discovery to argue for or against certain numbers or calculations.
I also find the overlay of trying to prepare for an anticipated appeal on the damages portion of the case under Federal Circuit caselaw - should things go south - while trying to put on the most persuasive damages case possible at trial to be very intellectually stimulating. Things are always more interesting when you're standing up at trial I have found. As Winston Churchill and Samuel Johnson both almost once said, nothing concentrates your mind as much as being shot at. Unfortunately in my case it doesn't always concentrate it sufficiently for the task at hand, but you have to work with the tools at hand.
The article is not yet up online that I can tell, other than as part of Texas Lawyer's digital edition here, which I expect is only available to subscribers. Mrs. Smith and I will be assisting in herding a group of Marshall 7th and 8th graders around Washington, D.C. most of this week, or I'd put a link up when it comes out. But they'll have one eventually, surely.