“Creative Approaches to Damages for Patent Infringement”On April 21, 2008 by Schnader
Ronald J. Ventola, II authored “Creative Approaches to Damages for Patent Infringement,” which was published in Intellectual Property Supplement to The Legal Intelligencer on April 21, 2008.
The article explores in detail three cases regarding damages and attorneys’ fees for patent infringement: American Seating Company v. USSC Group, Inc., Monsanto Company v. David, and Tivo, Inc. v. Echostar Communications Corporation. In American Seating Company v. USSC Group, Inc. 2007-1112 (Fed. Cir. 1/29/2008), the Federal Circuit affirmed an award of damages against a defendant that sold a non-infringing product because the sale of the non-infringing product came after the defendant’s offer to sell an infringing product. In Monsanto Company v. David, 2007-1104 (Fed. Cir. 2/5/2008), the Federal Circuit affirmed a royalty rate of more than 100% of the normal selling price of the patented seeds. And, in Tivo, Inc. v. Echostar Communications Corporation 2006-1574 (Fed. Cir. 1/31/2008), the result offers food for thought on jury instructions in cases involving two very distinct embodiments of an invention, and how that can affect an award of damages.