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November 13, 2008

Damages in Patent Cases Post-eBay

I was somewhere last month where we had a discussion of the availability of post-judgment damages where, pursuant to the Supreme Court's decision in eBay, the district court finds a patent infringed. The courts seem to be disagreeing on what to do: some, for example, grant the same royalty post-judgment as they did for pre-judgment infringement, while others apply a "kicker" to this post-judgment rate.

It seems to me it has to be more than the pre-judgment royalty rate.

Why? Well, for post-judgment infringement it is clearly willful, and so the patentee's other option is to forego the stream of payments and sue every year or so. In that suit, it would get attorneys' fees, willful infringement damages because of the willful nature of the infringement.

Now, maybe Congress should enact statutes that provide otherwise, but the ones we have do not, I don't believe, allow for any different result.

November 13, 2008 | Permalink


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