Remedies

Question 1

What are the two types of remedies?

Answer 1

1. Injunctions

2. Damages

Question 2

Why do we give injunctions?

Answer 2

1. Moral rights
2. Stop bad uses
3. Monopoly
4. Damages can be too speculative

Question 3

What was eBay?

Answer 3

there is a common law test for injunction and it has four moving parts

Question 4

When is the best time to give injunctions?

Answer 4

in situations

Question 5

What was Lucent?

Answer 5

Substantial evidence did not support the jury’s damages award–a lump-sum royalty payment of approximately $358 million, 35 U.S.C.S. § 284. To the extent the jury relied on an entire market value calculation to arrive at the lump-sum damages amount, that award was not supported by substantial evidence and was against the clear weight of the evidence.

innocent infringement (not malicious)

Should approximate the deal they would have done.

Question 6

Do we give injunctions to NPE’s? Why or why not?

Answer 6

No, they aren’t going to use the patents; just trying to ransom off the injunction

Question 7

What is section 284 about?

Answer 7

reasonably royalty damages

Question 8

How do you get punitive damages?

Answer 8

When the infringement is willful

Question 9

What can you choose between in damages?

Answer 9

1. Lost profit

2. Reasonable royalties

Question 10

What are the Panduit factors?

Answer 10

what we look at for lost profits

1. Demand for the patented product
2. Absence of acceptable non-infringing alternatives
3. The patentee’s capacity to exploit demand
4. The amount of profit the patent holder would have made

Question 11

When may lost profits not be worth it?

Answer 11

1. for generic drug companies (where price in the market had to go down)
2. microprocessor companies (only packed in something else)

Question 12

What do we look at for reasonable royalties?

Answer 12

when you wouldn’t have been doing it or you’re not good at it:

Mainly: use hypothetical negotiation; what deal would the parties have cut prior to the infringement?

the Georgia Pacific factors

Question 13

What is the problem with the GP factors?

Answer 13

Too many numbers for jurors

Question 14

What is Seagate about?

Answer 14

Willful infringement: punitive damages

Question 15

What are the two factors for wilfullness?

Answer 15

1. Must show clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent
2. The accused infringer must have either known or should have known the objectively defined risk

Question 16

Are there forward looking damages?

Answer 16

just starting to come up… unclear

Question 17

What is RAND? FRAND?

Answer 17

Invite for standard meetings, but you must agree to be reasonable and non-discriminatory (RAND) if you have a patent that covers some part of the standard (Europe is FRAND- fair, reasonable, and non-discriminatory)

Question 18

What’s wrong with RAND? (3)

Answer 18

1. No one defines “non-discriminatory”
2. Don’t say anything about prices
3. Hostage taking role is very real in these settings