« Split in Courts on Availability of Unclean Hands as Defense Under RICO | Main | Fifth Circuit Addresses Split on Charging Full Rates for Travel Time under 11 USC 330 »

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

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341bfae553ef010535f2219c970c

Listed below are links to weblogs that reference Damages in Patent Cases Post-eBay:

Comments

Post a comment