Patent Law Institute Live Blog: Patent Damages – Keeping Up With the Changing Rules

We are back from the lunch break with our first panel of the afternoon from the Patent Law Institute. This afternoon’s panel is entitled, “Patent Damages – Keeping Up With the Changing Rules”. Our featured panelists are John Moehringer and Dawn Hall. The panel provides perspectives on the sea change in damages analysis, with focus on constructing/deconstructing a reasonable royalty case, proving lost profits and price erosion, and getting the most from your damages/economic expert. Here are the highlights: (more…)

PLI Talks: Gerard Haddad on Patent Litigation

The Practising Law Institute’s Laurie Gilbertson interviewed Gerard Haddad, a partner in the Intellectual Property Practice at Dickstein Shapiro LLP, regarding the latest in patent litigation. Gerard shares how the Federal Circuit’s new rule of thumb for patent damages requires a connection between the damages and the actual patent. He also discusses with Laurie how the pharmaceutical industry has a likelihood of bringing claims that may challenge the application of the new rule for patent damages. For more, check out Gerard’s power point presentation entitled, “Rule of Thumb is Extinguished”.

Judge: Nash Bargaining Is No Solution for Patent Damages

Brandon Baum of Baum Legal and Practice Center Contributor, sent in this article discussing the “Nash 50 Percent Rule” and patentees recent attempt to use the rule to support it’s damages claim in it’s patent infringement case.  Is the Nash Bargaining Solution stronger and more defensible than the “25 Percent Rule”?

In Uniloc v. Microsoft, the Federal Circuit rejected the so-called “25 Percent Rule of Thumb” that suggested that in a hypothetical negotiation over reasonable royalties, a good starting point is to assume a profit split of 25% to the patentee and 75% to the infringer.  Although the Federal Circuit did not say it, it has been assumed by many that the problem with the 25 Percent Rule was that it gave too much to the patentee — resulting in excessive damage awards.  Indeed, it was Microsoft complaining about the use of the “Rule” on appeal, not Uniloc.

Patentees, however, are a clever and resilient bunch who always view the glass as half full.  Since the Federal Circuit found that the 25 Percent Rule was not sufficiently grounded in science, patentees sought a replacement that was stronger and more defensible — and many have turned to the Nash Bargaining Solution. The Nash Bargaining Solution is a mathematical proof of what any parent of two children knows; in a two person bargaining scenario, the optimal split that the parties will eventually agree upon is 50-50.  For this, Nash won a Nobel Prize.  ”Eureka!,” said patentees.  ”We will replace the unproven and now-rejected 25 Percent Rule with Nash’s Nobel Prize-winning 50 Percent Rule!” (more…)

New FTC Report Suggests Improved Alignment of Patent System With Competition Policy

Earlier this week, the FTC published an extensive report recommending ways to improve patent law policies.  The report emphasizes that the patent system and competition policy share the goal of promoting innovation that benefits consumers and explores ways to achieve greater alignment between the two.  Our friends at Foley & Lardner sent in this alert highlighting the key points of the report.

On March 7, 2011, the FTC released a 300-page report, The Evolving IP Marketplace: Aligning Patent Notice And Remedies With Competition. The Report assesses the patent system’s benefits and challenges as more companies shift to “open innovation” and increasingly rely on technology transfers to adopt inventions created outside their own R&D efforts. The FTC continues its engagement regarding the patent system that began with its 2003 Report, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, and continued with its 2007 Report, Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition. The 2011 Report aims to better align the patent laws with competition policy by recommending improvements to two areas of patent law policies, namely how well a patent gives notice to the public of what technology is protected, and the remedies available for patent infringement.

Improving The (more…)

Hoffman & Baron: The Current State of Patent Law

During late 2009 – 2010, we saw a significant number of remarkable decisions from the Supreme Court and the Federal Circuit that impacted the patent community.  From Bilski v. Kappos, to Forest Group v. Bon Tool, to Wyeth v. Kappos, to Ariad Pharmaceuticals v. Eli Lilly, just to name a few.  The following article discussing these decisions was written by Robert Neuner, Partner with Hoffman & Baron and presenter at PLI’s upcoming 5th Annual Patent Law Institute.  Here is an excerpt and a link to the article.

This paper discusses a range of cases decided in late 2009 and 2010 that reflect the current state of the law on issues with which each of us should have at least some familiarity.  Having decided Bilski, the Supreme Court has one again exercised its oversight over the Federal Circuit.  It will review three Federal Circuit decisions concerning the Bayh-Dole Act and the proofs necessary to establish (a) inducement of infringement and (b) patent invalidity.  There is also the blockbuster Myriad case now wending its way to a decision by the Federal Circuit. (more…)