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is a partner and co-chair of Dentons’ Patent Litigation and Intellectual Property and Technology practice, a large team of top-notch litigators with diverse legal and technical backgrounds having a strong track record of success winning in the district courts, at the International Trade Commission (ITC), and in inter partes reviews (IPR) in the US Patent and Trademark Office. He is a trial lawyer with decades of experience and he is recognized as one of the most experienced and aggressive patent litigators in the country.
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While Exmark invites a more flexible approach to apportionment, allowing, at least in some cases, a focus on the royalty rate to value the patented invention, the rate analysis itself must be properly supported. Indeed, Exmark serves as a cautionary reminder that any expert opinions on reasonable royalty damages must be closely tied to the facts of the case. Damages opinions that are purely speculative and unsupported by the facts of the case are likely to be found inadmissible. As a result, apportionment approaches will continue to be case-specific, variously focusing on the royalty base, the royalty rate, or a hybrid-model involving both elements.
The central issue before the Federal Circuit was whether there was a genuine issue of material fact that TSA’s performance of those steps could be attributed to Travel Sentry, such that Travel Sentry could be held singularly responsible for directly infringing Tropp’s method claims. Slip Op. at 13. The district court had answered this question in the negative… The Federal Circuit rejected the district court’s interpretation of divided infringement as too narrow and, accordingly, vacated its summary judgment of non-infringement.
In a strong reversal of the Federal Circuit, the US Supreme Court held in SCA Hygiene Products Aktiebolag v First Quality Baby Products, LLC, No. 15-927 (March 21, 2017), that delay by a patentee will not give rise to a laches defense during the statutory six-year damages period under 35 U.S.C. § 286. Justice Samuel Alito authored the 7–1 majority opinion, extending the court’s decision in Petrella v. Metro-Goldwyn-Mayer, Inc. (2014), which held that laches is inapplicable for copyright infringement, a provision similar to Section 286 of the Patent Act… The Supreme Court noted that its determination regarding laches does not preclude a defense based on equitable estoppel…
After Halo, courts appear to be breathing new life into claims for willful patent infringement and enhanced damages claims. In fact, since Halo’s new standard took effect a few months ago, juries found willful infringement in three out of four cases where they returned a verdict of infringement. However, as discussed below, there are steps a defendant can take to protect itself against a finding of willful infringement.