Posts Tagged: "25 Percent Rule"

During his contemporaneous, unscripted speech, Chief Judge Randall Rader made several remarks about the access to justice that raised some eyebrows. On Friday we were told that we need to tolerate the injustice of certain rules that might lead to an unfair result, but then on Saturday morning during the Judges’ panel we were told that rules of thumb couldn’t and shouldn’t apply to the law of damages. Rader on one hand was saying that certainty and relatively bright line rules are necessary to control the process of litigation, but then on the other hand saying that a flexible, case-by-case approach needs to be what we pursue. In short, it seems to me that Judge Rader wants to have his cake and eat it too! I dissented in person, and I dissent here and now.

While the Federal Circuit ruled that Microsoft did infringe and the patent claim in question (claim 19 of U.S. Patent No. 5,490,216) was valid, it was Microsoft who was the big winner here. The damages awarded by the jury to Uniloc were $388 million, which was set aside by the district court, a ruling that the Federal Circuit affirmed. The Federal Circuit also agreed there was no willful infringement. So while Uniloc has won at least something from Microsoft as a result of its infringement of a valid patent claim, it seems like it will be far less than the $388 million, particularly given the Federal Circuit threw out the 25 percent rule and said the entire market value rule was not applicable in this case.