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2021
Patent jury awards in 2020: Patent jury awards total $2.6 billion despite COVID-19 pandemic
2020
Use of total sales as royalty base is proper and apportionment analysis unnecessary under comparable license theory (Vectura v. GlaxoSmithKline)
Summary judgement of equitable estoppel inappropriate where there are multiple reasonable interpretations of the evidence (Ferring B.V. v. Allergan)
Supplemental damages and ongoing royalty vacated for relying almost exclusively on expired patent (EcoServices v. Certified Aviation)
Invalidity opinion of counsel is relevant but not dispositive in willfulness inquiry (C. R. Bard v. AngioDynamics)
Lower court decision to increase prejudgment interest award for post-suit time period is affirmed (Exmark Manufacturing v. Briggs & Stratton)
Availability of infringing generic alternatives is not a proper consideration for pharmaceutical lost profits (GlaxoSmithKline v. Teva)
Case not exceptional where objectionable conduct was previously considered in granting sanctions motion (Khan v. Hemosphere)
Ongoing FRAND royalty applied to unaccused and unadjudicated products is affirmed (Godo Kaisha IP Bridge 1 v. TCL Communication)
Jury royalty affirmed but injunction partially vacated because Defendant depends entirely on sales of enjoined products (Bio-Rad Labs. v. 10X Genomics)
Sample Motions For A Preliminary Injunction For Patent Infringement
Injunction denied, despite irreparable harm provision, because Plaintiff is not likely to show breach of contract (Takeda v. Mylan)
Plaintiff cannot recover pre-suit damages because of unmarked licensee products (Packet Intelligence v. NetScout )
Denial of fees reversed where plaintiff filed multiple suits to obtain low-value settlements (Electronic Communication Technologies v. ShoppersChoice.com)
Sample Motions To Dismiss Patent Infringement Complaints
Sample Declaratory Judgment Complaints For Patent Infringement Litigation
Failure to appeal laches dismissal supports denial of relief from judgment despite change in law (Medinol v. Cordis)
Fees reversed for failure to show facts of Plaintiff’s unreasonable positions at the PTAB and district court (Munchkin v. Luv N’ Care)
No appellate jurisdiction for non-final judgments of lack of notice under Section 287 (Iron Oak Techs. v. Microsoft)
Sample Complaints For Patent Infringement Litigation
On appeal, a party cannot recover fees incurred at the PTAB under Section 285 (Amneal Pharm v. Almirall)
Denial of preliminary injunction and dismissal with prejudice for defective contentions affirmed (Xiaohua Huang v. MediaTek U.S.)
Ten percent prejudgment interest on the jury award affirmed (Schwendimann v. Arkwright Advanced Coating)
No irreparable harm where plaintiff licenses the patent and defendant competes with the licensees (Verinata Health v. Ariosa Diagnostics)
Assignor estoppel bars assignor from challenging patent validity at the district court but not the PTAB (Hologic v. Minerva Surgical)
Defendant was prevailing party for fees after invalidating asserted claims at the PTAB (Dragon Intellectual Property v. DISH Network)
Denial of summary judgment on patent eligibility reversed and jury award vacated (Ericsson v TCL Communication Technology)
Defendant is not prevailing party for fees where plaintiff voluntarily dismissed the case after invalidity at the USPTO (O.F. Mossberg & Sons v. Timney Triggers)
Stipulated dismissal with prejudice may form basis for attorney fees under Rule 54 (Keith Manufacturing v. Butterfield)
Finding of bad faith is required to enjoin patentee from making infringement accusations (Myco v. BlephEx)
Federal Circuit on applying Georgia-Pacific factors 12 and 13 for a reasonable royalty
COVID-19 Update: Federal court procedures in response to the coronavirus
Judgment of infringement affirmed and case remanded for proceedings on damages (Hafco Foundry and Machine v. GMS Mine Repair)
Federal Circuit on applying Georgia-Pacific factor 11 for a reasonable royalty: use by the infringer
Withheld offer for sale renders patents unenforceable for inequitable conduct (GS CleanTech v. Adkins Energy)
Marking statute limits damages even after the sale of unmarked product ceases (Artic Cat v. Bombadier Recreational )
Summary judgement of noninfringement vacated because settlement agreement mooted the case (Serta Simmons Bedding v. Casper Sleep)
Federal Circuit on applying Georgia-Pacific factors 9 and 10 for a reasonable royalty
Federal Circuit on showing capacity to exploit the demand for lost profits under Panduit
Continuation of a continuation is impliedly licensed under the grandparent patent’s license agreement (Cheetah Omni LLC v. AT&T)
Federal Circuit on applying Georgia-Pacific factors 7 and 8 for a reasonable royalty
Federal Circuit on applying Georgia-Pacific factor 6 for a reasonable royalty: convoyed sales
What We Learned About Patent Remedies In 2019
Balance of the harms disfavors injunction where movant does not show irreparable harm (LEGO v. ZURU)
Denial of summary judgment of invalidity does not conclusively show objective reasonableness regarding fees (Eko Brands v. Adrian Rivera Maynez)
Plaintiff is not entitled to jury award after invalidity at the PTAB (Personal Audio v. CBS)
Federal Circuit on Section 286 and the statute of limitations for patent infringement damages
Federal Circuit on applying Georgia-Pacific factors 4 and 5 for a reasonable royalty
Federal Circuit on applying Georgia-Pacific factors 2 and 3 for a reasonable royalty
Patent jury awards in 2019: Delaware and Eastern Texas have higher verdicts than the rest
2019
A patent litigation remedies profile of the District of Massachusetts
District court local rules for patent infringement cases
Party’s misconduct must make the entire case exceptional to merit attorney fees (Intellectual Ventures I v. Trend Micro)
A patent litigation remedies profile of the District of New Jersey
A patent litigation remedies profile of the Northern District of Illinois
A patent litigation remedies profile of the Central District of California
Fees warranted because of NPE plaintiff’s unreasonable conduct and to deter future abusive litigation (Blackbird v. Health In Motion)
Jury lump sum biologics royalty is supported by substantial evidence (Amgen v. Hospira)
Supreme Court holds that Section 145 does not permit the recovery of USPTO attorney fees under “expenses” (Peter v. NantKwest)
Release payment for past infringement of standard essential patents is a jury question (TCL Communication v. Telefonaktiebolaget LM Ericsson)
Damages remanded for potential new trial based on appellate finding of reduced liability (VirnetX v. Apple)
Federal Circuit on calculating reasonable Section 285 attorney fees under Octane Fitness
Preliminary injunction inappropriate where defendant raised a substantial question of validity under anticipation (OrthoAccel Technologies v. Propel Orthodontics)
Declaratory jurisdiction existed where patentee sued the declaratory plaintiff’s customer (UCP v. Balsam Brands)
Attorney fees based on litigation misconduct reversed because movant is no longer a prevailing party (UCP v. Balsam Brands)
Judgment vacated and “pending” case remanded for dismissal after unpatentability at the PTAB (Chrimar Systems v. ALE U.S.)
Injunction, enhanced damages, and attorney fees vacated after finding one patent invalid under Section 101 (Chamberlain Group v. Techtronic Industries)
Damages available for products in amended complaint that relate back to the originally accused products (Anza Tech. v. Mushkin)
Case is not necessarily exceptional where litigation costs exceed the potential damages (ATEN International v. Uniclass)
Patent exhaustion and patent repair do not necessarily apply to replacement parts in design cases (Automotive Body Parts Association v. Ford Global Technologies)
Willfulness, enhancement, and attorney fees vacated (SRI International v. Cisco)
Royalty affirmed where expert started with a third party settlement and increased the value by 20% (Elbit Systems v. Hughes Network)
Dismissal under Section 101 and subsequent grant of attorney fees are vacated (CellSpin Soft v. Fitbit)
Liability reversed, mooting issues of damages, willfulness, and attorney fees (Cobalt Boats v. Brunswick)
Federal Circuit on finding materiality for inequitable conduct after Therasense
Federal Circuit on determining an ongoing royalty for patent infringement
Case exceptional where Plaintiff did not perform a simple test of the publicly available accused products (ThermoLife v. GNC)
A patent litigation remedies profile of the Northern District of California
A patent litigation remedies profile of the Eastern District of Texas
Federal Circuit on excluding or vacating lost profits patent infringement damages
Liability as to one claim does not support general damages, willfulness finding, enhancement, or attorney fees (Omega Patents v. CalAmp)
A patent remedies case study on Saffran v. Johnson & Johnson
Lost profits and permanent injunction found appropriate in two-supplier market (TEK Global v. Sealant Systems)
Willfulness and enhancement vacated, but exceptionality finding affirmed (SRI International v. Cisco)
Jury royalty relying on previous related jury verdict is affirmed – modified opinion (Sprint v. Time Warner)
Lower court did not err in using aggregate method instead of apportionment to award fees (Drop Stop v. Zhu)
Attorney fees reversed because plaintiff was no longer the prevailing party (Imperium v. Samsung)
What We Learned About Patent Remedies In 2018
Plaintiff did not intend to deceive the PTO in misdiscribing a figure (Barry v. Medtronic)
Stipulated reasonable royalty affirmed and lost profits remanded after intervening invalidity of some claims at the PTAB (WesternGeco v. ION)
Patent jury awards in 2018: Delaware takes over with most and highest jury verdicts
2018
Federal Circuit on applying the Read Factors for enhanced damages: infringer’s motivation for harm
Federal Circuit on applying the Read Factors for enhanced damages: remedial action by the infringer
In considering attorney fees, the district court need not resolve issues mooted by the case (Spineology v. Wright Medical)
Jury royalty relying on previous related jury verdict is affirmed (Sprint v. Time Warner)
Preliminary injunction vacated due to erroneous construction of asserted claims (Indivior v. Dr. Reddy’s)
Lump-sum royalty covering products not accused to be infringing is vacated (Enplas Display v. Seoul Semiconductor)
A patent litigation remedies profile of the District of Delaware
A patent remedies case study on Bard v. Gore
A patent remedies case study on Apple v. Samsung
Federal Circuit on applying the Read Factors for enhanced damages: duration of the infringement
Entire market value rule inappropriate where accused product has valuable non-patented features – modified opinion – (Power Integrations v. Fairchild Semiconductor)
Federal Circuit on applying the Read Factors for enhanced damages: closeness of the case
Federal Circuit on applying the Read Factors for enhanced damages: size and financial condition
Federal Circuit on applying the Read Factors for enhanced damages: litigation misconduct
Federal Circuit on applying the Read Factors for enhanced damages: deliberate copying
Fees for entire suit proper where plaintiff’s misconduct permeated the entire case (Large Audience Display v. Tennman)
Implied waiver may result where patentee failed to disclose patent application to standard-setting organization (Core Wireless v. Apple)
USPTO’s attorney fees do not fall within Section 145’s “expenses” after district court appeal (Nantkwest v. Iancu)
It was error to allow all requested fees without causal connection between the misconduct and the award (Rembrandt v. Comcast )
District court decisions on excluding unqualified damages experts
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District court decisions granting preliminary injunctions for patent infringement
Enhancement vacated because district court did not sufficiently consider the closeness of the case (Polara v. Campbell)
Denial of permanent injunction vacated because willingness to license does not necessarily mean no irreparable harm – modified opinion – (Texas Advanced Optoelectronic v. Renesas)
Entire market value rule inappropriate where accused product has valuable non-patented features (Power Integrations v. Fairchild Semiconductor)
Federal Circuit on showing demand for the patented product for lost profits under Panduit
Supreme Court holds that Section 284 permits lost profits for foreign uses of infringing components under Section 271(f)(2) (WesternGeco v. ION)
Invalidity contentions did not provide clear notice of patent’s invalidity for attorney fees (Stone Basket v. Cook Medical)
Pro se plaintiff held liable for attorney fees and expert costs (Huang v. Huawei Technologies)
District court decisions granting Section 285 attorney fees post Octane Fitness
Lower court erred in considering pre-suit licensing rate in determining the ongoing royalty (XY v. Trans Ova Genetics)
Party waived right to challenge finding of no willfulness despite change in law (Ultratec v. Sorenson)
Infringement, direct competition, and past harms support permanent injunction against generics company (Endo v. Teva)
Federal Circuit on showing a causal nexus for an injunction of a multi-component product
Consumer’s interest in purchasing hypothetical infringing products does not create declaratory jurisdiction (AIDS Healthcare v. Gilead)
Expert’s royalty methodology properly apportioned the value of nonpatented features and of standardization (Chrimar Holding v. ALE USA)
Federal Circuit on providing actual notice under Section 287 for patent infringement damages
Courts may deny fees after finding inequitable conduct but must explain (Energy Heating v. Heat On-The-Fly)
Federal Circuit on Section 289 total profits for design patent infringement
Denial of permanent injunction vacated because willingness to license does not necessarily mean no irreparable harm (Texas Advanced Optoelectronic v. Renesas)
Misconduct during prosecution and litigation supports finding of unclean hands for asserted patents (Gilead v. Merck)
Equitable estoppel does not apply to pre-reexamination conduct of substantively modified reexamination claims (John Bean v. Morris & Associates)
Dismissal with prejudice for lack of standing makes defendant a prevailing party for attorney fees (Raniere v. Microsoft)
NPE case not exceptional because plaintiff had good faith positions and did not delay in its litigation tactics (Sarif Biomedical v. Brainlab)
Jury royalty awarding plaintiff 71% of infringer’s per-unit profit is supported by the evidence (Exergen v. Kaz)
No declaratory jurisdiction where invalidity issue would not resolve the underlying contractual dispute (AbbVie v. MedImmune)
Enhanced damages vacated because district court did not particularly explain the basis for trebling the award (WCM v. IPS)
Irreparable harm shown where risk averse customers would perceive that plaintiff no longer had an exclusive license (MACOM Tech. v. Infineon)
What We Learned About Patent Remedies In 2017
Denial of preliminary injunction is vacated as it was based on a flawed claim construction (Liqwd v. L’Oreal)
Sales of the entire product appropriate as the royalty base if patentee properly apportions the royalty rate (Exmark v. Briggs & Stratton)
Losing a summary judgment motion does not automatically make the plaintiff’s case exceptional (Honeywell v. Fujifilm)
If the smallest salable unit has non-infringing features, the patentee must further apportion the royalty (Finjan v. Blue Coat )
Patent jury awards in 2017: Eastern Texas leading with most and highest verdicts
2017
Fees awarded because plaintiff continued with meritless eligibility arguments after Alice (Inventor Holdings v. Bed Bath & Beyond)
After the alleged infringer produces unmarked products, the patentee has the burden to show they’re not covered (Arctic Cat v. Bombadier)
Lost profits award reversed because of non-infringing substitute; permanent injunction then vacated (Presidio v. American Technical Ceramics)
Party waived alternative damages theory by pursuing an all-or-nothing damages approach (Promega v. Life Technologies)
Court retained declaratory jurisdiction despite that DJ defendant sold its IP assets prior to the DJ action (Industrial Models v. SNF)
Declaratory action improper where DJ defendant’s patent ownership was contingent on prevailing in state court (First Data v. Inselberg)
Declaratory action by U.S. manufacturer improper where notice letters targeted foreign distributors for infringing a foreign patent (Allied Mineral v. Osmi)
Attorney fee award affirmed in longstanding Octane Fitness saga (ICON v. Octane Fitness)
Seventh Amendment does not require a jury trial for attorney-fees factual inquiries (AIA America v. Avid)
District court erred in holding that Octane Fitness does not apply to the Lanham Act (Romag Fasteners v. Fossil)
Patent owner’s lost profits, willfulness finding, and enhanced damages affirmed (Georgetown Rail v. Holland)
No Walker Process violation because there was no showing of intent to deceive the PTO (Alfred T. Guliano v. SanDisk)
Post hoc litigation misconduct supports adverse inference of specific intent to deceive the PTO (Regeneron v. Merus)
Federal Circuit on finding willful infringement after Halo
For multi-component products, causal nexus only requires some connection between the feature and product demand (Genband v. Metaswitch)
Case exceptional where plaintiff litigated after a conclusive Markman order, and had nuisance settlements (AdjustaCam v. Newegg)
Case not exceptional where accused products were different than those earlier held non-infringing (Parallel Networks v. Kayak)
Attorney fee award vacated because party no longer the prevailing party (Chaffin v. Braden)
Section 145 requires a PTAB appellant pay the USPTO’s attorney fees after appealing to the district court (Nantkwest v. Matal)
Case not exceptional where defendant did not seek summary judgment of noninfringement (Prism v. T-Mobile)
Fees warranted where party showed pattern of suing and settling for sums below costs of defense (Rothschild v. Guardian)
Pattern of enforcing patent rights doesn’t make a losing case exceptional (Checkpoint v. All-Tag)
Causal nexus found where Defendant couldn’t achieve ANDA product without infringing (Mylan v. Aurobindo)
Equity action to set aside judgment is exceptional because of meritless allegations (Nova Chemicals v. Dow)
No irreparable harm where the parties don’t meaningfully compete, and where plaintiff licensed to others (Nichia v. Everlight)
Patentee cannot bypass marking statute by disclaiming the unmarked feature (Rembrandt v. Samsung)
False marking damages require concrete evidence of causation, not general assertions (Gravelle v. Kaba)
Permanent injunction reaching a party not found liable is vacated (Asetek Danmark v. CMI USA)
Federal Circuit lists non-exclusive factors to consider when assessing exceptionality under § 285 (University of Utah v. Max Planck)
Supreme Court holds that laches may not bar the recovery of damages for a suit brought within the limitations period (SCA Hygiene v. First Quality)
Patent jury awards 2015-16: Median jury award drops by $5M
Jury award in design-patent case vacated in light of Apple v. Samsung (Nordock v. Systems)
Attorney fees warranted where Plaintiff’s position was contradicted by the evidence and by its own witnesses (Bayer v. Dow)
No further lost-profits apportionment needed when applying the Panduit factors (Mentor Graphics v. EVE-USA)
Earlier settlement is comparable despite that infringement and validity were unsettled in the earlier case (Prism v. Sprint Spectrum)
Preliminary injunction upheld because the loss of a potential lifelong customer is irreparable (Metalcraft of Mayville v. Toro)
Damages remanded for the district court to determine § 289’s “article of manufacture” test (Apple v. Samsung)
Patent jury awards in 2016: Delaware with the highest verdicts
Attorney fees warranted for litigant’s refusal to produce an issue-dispositive document (Oilwell Varco v. Omron)
Likely success on the merits not shown where the district court relied on erroneous claim construction (Chamberlain v. Techtronic)
Pre-patent consumer confusion, reputational harm, and loss of goodwill support irreparable harm (Tinnus v. Telebrands)
District court decisions on willfulness and enhancement post Halo
Parties seeking attorney fees more frequently after Octane Fitness, but they are not more successful
Federal Circuit on finding a party in contempt for a redesigned product that violates an injunction
After frivolous appeal, appellant’s counsel held jointly and severally liable for fees and double costs (Walker v. Health International)
2016
What We Learned About Patent Remedies In 2016 (as published on Law360)
A permanent injunction is not overly broad despite that it reaches products that do not necessarily infringe (United Construction v. Tile Tech)
Withheld documents are not material for inequitable conduct because the examiner had the information available (U.S. Water v. Novozymes)
A past dismissal with prejudice does not preclude a claim for an injunction on the dismissed conduct (Asetek Danmark v. CMI USA)
Supreme Court holds that § 289’s “article of manufacture” covers a component of the end product (Samsung v. Apple)
District court’s JMOL of nonwillfulness is vacated for relying on Seagate’s objective prong (Alfred E. Mann Foundation v. Cochlear)
In calculating attorney fees, the trial court should use market rates of the forum state (Large Audience Display v. Tennman)
Objective reasonableness isn’t dispositive in a willfulness inquiry, but is still a relevant factor (WesternGeco v. ION)
Jury finding of willfulness doesn’t automatically support enhancing damages or awarding attorney fees (Stryker v. Zimmer)
Federal Circuit on balancing the hardships for a post-eBay injunction
DJ action proper despite that the DJ-plaintiff did not yet manufacture or sell the product (Asia Vital v. Asetek)
Federal Circuit on finding irreparable harm for a post-eBay injunction
Federal Circuit on finding a case exceptional as to qualify for attorney fees
After the jury finds subjective willfulness, the judge decides whether to enhance damages (Halo v. Pulse)
Question of subjective willful misconduct is for the jury (Innovention v. MGA)
Enhancement affirmed because defendant knew of the patents at the time of infringement. (Wbip v. Kohler)
2016 Mid-year review of remedies decisions
Supreme Court loosens willfulness standard: objective recklessness no longer required (Halo v. Pulse)
No attorney fees because the losing party’s argument had a good-faith basis that the law would change (Mankes v. Vivid Seats)
Foreign suit doesn’t rebut laches presumption unless defendant knows of the subsequent US suit (Lismont v. Alexander Binzel)
No intervening rights despite that patentee modified the claims after a prior art rejection during reexam (Convolve v. Compaq)
Treble attorney fees for defending against a fraudulently obtained patent (Transweb v. 3M)
Knowledge of the grandparent patent provides no actual notice for pre-issuance damages (Rosebud v. Adobe)
No abuse of discretion because the district court gave reasons for the denial of attorney fees (Site Update v. CBS)
No enhancement: the lodestar method is presumptively reasonable for attorney fees (Lumen View Tech. v. Findthebest.com)
2015
Prelim injunction upheld: Defendant didn’t raise a substantial question as to infringement or invalidity (Edge v. Aguila)
For standard-essential patent damages, the district court must discount the value of standardization (Scientific v. Cisco)
Lost profits available despite that the patentee’s product was twice as expensive as the infringer’s (Akamai v. Limelight)
Exceptionality finding upheld because the district court provided five independent bases (Integrated v. Rudolph)
If § 289 damages are sought, the jury cannot award § 284 damages without considering the infringer’s total profits (Nordock v. Systems)
Preliminary injunction that merely prohibits “other products” is overbroad (M-I v. FPUSA)
Expert methodology is admissible despite being neither published nor peer reviewed (Summit 6 v. Samsung)
Laches may bar the recovery of damages for a suit brought within the limitations period (SCA Hygiene v. First Quality)
No damages for reexamined claim because patentee substantively narrowed the claim during reexam (R+L Carriers v. Qualcomm)
Irreparable harm’s causal nexus shown where users preferred the patented features over alternatives (Apple Inc. v. Samsung)
District court’s denial of attorney fees is vacated in light of Octane Fitness (Adjustacam v. Newegg)
Attorney fees grant vacated because the underlying noninfringement decision was also vacated (TNS Media Research v. TiVo)