Thursday, January 27, 2011

CAFC Note on Incorporating Information By Reference

Fifth Generation Computer Corp. v. IBM, No. 2010-1201 (Fed. Cir., January 26, 2011) (nonprecedential)

On appeal, 5th Generation and IBM tussled over the the construction of the term "root bus controller" in a patent directed to a binary tree parallel computing system.  The district court construed the term to mean "a controller at the highest order position of the binary tree computer system."  5th Generation argued that the term should have a broader construction to mean “any bus controller that is the highest level bus controller in the tree or subtree.”

5th Generation's argument heavily relied on information incorporated by reference in the specification of the disputed patent (the '024 patent), where the two patents (the "Stolfo patents") incorporated by reference allegedly supported the proposed construction.  The Fed. Cir. generally agreed that incorporation by reference could serve this purpose:

We agree with Fifth Generation that the ’024 patent specification does not need to expressly recite concepts disclosed in the earlier Stolfo patents in order to incorporate them into the later patent specification. The clear incorporation by reference suffices to serve that purpose here. See Zenon Envtl., Inc. v. U.S. Filter Corp., 506 F.3d 1370, 1378 (Fed. Cir. 2007) (“Incorporation by reference provides a method for integrating material from various documents into a host document . . . by citing such material in a manner that makes clear that the material is effectively part of the host document as if it were explicitly contained therein.”).

[W]e do not agree with Fifth Generation that every concept of the prior inventions is necessarily imported into every claim of the later patent. See Modine Mfg. Co. v. U.S. Int’l Trade Comm’n, 75 F.3d 1545, 1553 (Fed. Cir. 1996) (“[I]ncorporation by reference does not convert the invention of the incorporated patent into the invention of the host patent.”) . . . Here, the ’024 patent claims are clear in claiming a complete computer system, including specific functionality of the single root bus controller within that computer system. In light of such clear claim language, it is inappropriate to look to the incorporated references to arrive at a stretched reading of those claim limitations. Interactive Gift Express, 256 F.3d at 1331 (“If the claim language is clear on its face, then our consideration of the rest of the intrinsic evidence is restricted to determining if a deviation from the clear language of the claims is specified.”); see also Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1563 (Fed. Cir. 1991) (“When the language of a claim is clear, as here, and a different interpretation would render meaningless express claim limitations, we do not resort to speculative interpretation based on claims not granted.”).

[W]e also agree with IBM that the Stolfo patents in fact show that Fifth Generation’s inventor did not claim independent subtree systems in the ’024 patent in the manner now proposed by Fifth Generation. Fifth Generation asserts that the invention claimed in the ’024 patent was merely an enhancement of the inventions claimed in the earlier patents assigned to Fifth Generation. Therefore, under Fifth Generation’s own assertion, at the time of the filing of the ’024 patent, its inventors had claimed subtrees, at least as part of a larger binary tree computer system, in the earlier patents, and yet the ’024 patent inventor, employed by the same company, did not do so in the later patent, thereby demonstrating that such systems are not within the ’024 patent claims’ scope . . . Thus, we conclude that the district court’s construction of the term “root bus controller” requiring that it be the highest order bus controller of the binary tree system was correct.

Read/download the opinion here (link)

Wednesday, January 26, 2011

EPO Filings Up 10% in 2010

In this short-but-sweet news release, the EPO has announced:

The EPO received 232,000 European patent filings in 2010, 10% up on the 2009 figure (211,000). 39% of these filings originated from the 38 member states of the European Patent Organisation, 26% from the US, 18% from Japan and 5% from each of South Korea and China.

In 2010, the EPO granted 58,100 patents, 11% more than in 2009 (52,400).

"These figures clearly indicate that demand for patent protection is on the rise again, after the economic downturn of the previous two years", says EPO President Benoît Battistelli.

The EPO expects a further increase for the current year.
Compared to the US,

EPO Filings = 232,000, up 10%
US Filings = not published yet

EPO Grants = 58,100, up 11%
US Grants = 291,614, up 31%

This trend follows the trends being reported by other patent offices, although the "mere" 11% uptick in patent grants appears to lag behind others, such as the USPTO and SIPO.  Of course, the EPO hasn't published the full report yet, so stay tuned . . .

Monday, January 24, 2011

Consumer Watchdog Alleges Google Has "Inappropriately Benefitted" From Ties to Administration, USPTO

Today, Consumer Watchdog, self-described as "a nonprofit, nonpartisan consumer advocacy organization" sent Rep. Darrell Issa (R-CA) a 32-page report arguing "how Google has inappropriately benefited from its close ties to the Obama Administration."

On the "full disclosure" front, Consumer Watchdog has been a longtime (and relentless)  critic of Google, and recently received flak on it's criticism of Google's privacy policies and decision to run a Times Square jumbotron advertisement in September portraying Google as a massive invader of privacy, and caricaturing its ex-CEO Eric Schmidt as a "creepy, high-tech ice cream vendor who profiles children" (link1, link2).

In its latest salvo, CW released a report, culminated from a six-month study, alleging multiple questionable relationships between Google and NASA, the Dept. of Homeland Security, the Federal Communications Commission, and others.  Interestingly, CW implicates the USPTO as well, arguing that that the Office's 2009 deal with Google to publish patent and trademark information for free gives Google "inequitable advantages" over rivals:

Google now has a head start on its rivals in the fiercely competitive cloud computing market, thanks in part to deals inked with the US Patent and Trademark Office and the General Services Administration in the past year. In both cases, Google enjoyed the benefits of support from federal chief information officers. In both cases, a few people involved in the process voiced objections.

Google’s successes started in November 2009 when the USPTO announced its intention to give a sole‐source contract to the search engine to make patent and trademark information available to the public for free. 

Google’s rivals in the field of patent and trademark publishing complained in writing about the contract.  The USPTO then opened the contract to bidding ‐‐ on the condition the service be provided for free. USPTO CIO John Owens continued to push for approval of Google telling company officials in an email in December 2009, “I have quite a bit of pressure to get this deal signed.” Owens didn't explain from where that pressure was coming.

None of the publishing firms bid on the contract.  The no‐cost nature of contract would have an “anticompetitive effect,” said an industry group, the Coalition for Patent and Trademark Information Dissemination.  The arrangement, said a spokesman in a letter to USPTO, would give Google “inequitable advantages in timing, branding and inside technical information” that “are clearly in violation of existing statutes, and would result in unfair competitive advantage over other resellers of patent and trademark information.”

The reason for the group’s concern boils down to the way Google seems to be copying tactics pioneered by Microsoft in order to gain advantages in certain markets. When a company gives away something for free, it is obviously subsidizing the product or service. If that free good or service is obtained on an exclusive basis, it could constitute an illegal advantage. In the case of the PTO, the arrangement seems to raise questions about whether Google, by subsidizing access to certain government information, could ultimately gain a monopoly over that information as other companies find it impossible to compete.

The USPTO officials pushed to get the contract signed before a scheduled meeting between Secretary of Commerce Gary Locke, Director of Patents David Kappos, and Google CEO Eric Schmidt in February 2010.  When the contract was announced, PTO procurement chief Kate Kudrewicz told her contracting officer, “President Obama will be very pleased to hear this news.” Also copied on the e‐mail were Google executives Andrew Young and John Orwant.

To read/download the full report, click here (link)

To read CW's letter to Rep. Issa, click here (link)

Wednesday, January 19, 2011

China Patent Grants up 40%, Filings Up 25% in 2010

Not long after the announcement came out that the USPTO granted a record number of patents in 2010, China's SIPO officially announced today that the number of patents granted in China in 2010 was 40 percent higher than in 2009, receiving over 1.2 million patent applications and approving 814,825 requests among them last year. The application number was over 25 percent more than that in 2009.

It's important to note however, that China has three types of patent applications: (1) invention patents, (2) utility model patents, and (3) design patents.  Invention patent applications are equivalent to US non-provisional patent applications, while utility model patent applications (aka "petty patent" applications) do not experience substantive examination.  According to SIPO's statistics, utility model patents and design patents together outnumber invention patents by a 5-to-1 ratio.

On the domestic-vs-foreign front, invention patents accounted for over 85 percent in each year's foreign applications since 2005, while domestic applications for invention patents accounted for 26 percent during the same period.

While details are sketchy at this point, the number of foreign applications for invention patents in 2010 apparently rose about 15 percent from 2009, although the number of approved foreign applications dropped 12.3 percent.

However, domestic applications experienced a large leap -- Chinese applications took over 59 percent of all invention patents granted in 2010. The figure was 50.9 in 2009, exceeding foreign applicants' share for the first time.

This statistic is particularly interesting, since it comes hot on the heels of the Chinese government announcing that the country aims to quadruple both patent applications in foreign countries and domestic patent applications for every one million people. The annual patents transaction financial target is to reach 100 billion yuan (US$15 billion) by 2015.

-- Read SIPO Press Release "China Grants More Patents in 2010" (link)

Visit SIPO's statistics page here (link)

-- See also People's Daily, "SIPO: quality, not numbers, key to patents and innovation" (link)

If at First You Don't Succeed . . . HR 243 (Re)Introduced In House to Curb False Marking Claims

Earlier this month (Jan. 7), Rep. Robert Latta (R-OH) introduced HR 243 in an attempt to stem the tide of false marking litigation in the U.S.  The legisltation is intended to revert Section 292 back to the pre-Forest Group CAFC decision and assess one $500 fine if an entity is found guilty of deceiving the public through false marking, and not allow entities to be fined for each product on the market. The legislation will also require the individual bringing the lawsuit to have suffered a competitive injury as a result of the violation.

The legislation is identical to H.R. 6352, which was perviously referred to the House Judiciary Committee in September 2010.  Under the legislation, section 292 would be amended (hat tip to the Patent Docs for posting the amended language) to state:

(a) . . . Whoever marks upon, or affixes to, or uses in advertising in connection with unpatented articles the word "patent" or any word or number importing the same is patented, for the purpose of deceiving the public; or

Whoever marks upon, or affixes to, or uses in advertising in connection with one or more articles the words "patent applied for," "patent pending," or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiv­ing the public --

Shall be fined not more than $500, in the aggregate, for all offenses in connection with such articles.

(b) A person who has suffered a competitive injury as a result of a violation of this section may bring a civil action in the appropriate district court of the United States against the person violating this section for recovery of not more than $500 in damages to compensate for the injury.
According to an earlier statement by Latta, “[b]ecause of the Forest Group decision, this legislation is now needed to help companies fend off frivolous lawsuits and strengthen current law.  During this time of economic uncertainty, companies should not have to worry about expending additional resources on lawsuits based on one court’s interpretation of current law.”
Read/download a copy of H.R. 243 here (link)

Thursday, January 13, 2011

Thomson Reuters Releases "2010 State of Innovation Report"

Thomson Reuters released their annual "State of Innovation Report," where 12 technology areas were reviewed for patent activity, including:

  1. Computers & Peripherals
  2. Automotive
  3. Telecommunications
  4. Semiconductors
  5. Pharmaceuticals
  6. Medical Devices
  7. Petroleum & Chemical Engineering
  8. Domestic Appliances
  9. Food Tobacco & Fermentation
  10. Aerospace
  11. Agrochemicals & Agriculture
  12. Cosmetics

To measure patent activity, Thomson studied the first instance or invention for published patent applications and granted patents in 2010, counting each invention only once, in the country where protection was first sought.

Some noteworthy findings from the report:

• Aerospace patent activity increased by 25% overall from 2009 to 2010, driven by a 108% increase in Space Vehicle and Satellite Technologies, a sector within the Aerospace industry. The top three companies leading in this subsector were Japanese manufacturer Sharp, followed by Korean manufacturers LG and Samsung.

• Semiconductor patent activity decreased by 9% from 2009 to 2010 overall, driven by double-digit decreases in three Semiconductor subsectors: Integrated Circuits; Discrete Devices; and Memories, Film and Hybrid Circuits.

• Computers & Peripherals retained the leading position as the most innovative technology area in 2010 with the highest volume of patent activity: 212,622 unique inventions, despite a 6% decline in total volume from

• Automotive moved up to the second position in 2010 from fourth in 2009 based on overall volume of patent activity, surpassing the Telecommunications and Semiconductors industries.

To download a copy of the report (free registration required), click here (link).

Tuesday, January 11, 2011

Tech Insiders Pessimistic About Comprehensive Patent Reform in 2011

With the new Congress sworn in, reporters are turning to trade group leaders to see what their views are on upcoming legislation.  While certain "tech-related" bills (e.g. updating the Electronic Communications Privacy Act) are expected to move forward this year,  pessimism abounds for more controversial legislation, such as "comprehensive" patent reform:

[I]t may be difficult to pass wide-ranging legislation such as patent reform and some cybersecurity bills introduced over the past two years, with competing interests able to bottle up more controversial pieces of complex bills. [Dean Garfield, president and CEO of ITI] expects that targeted, stripped-down bills will have a better chance of passage.

"I think the chance of having a comprehensive anything in 2011 with this Congress is slim to none," he said.

But if lawmakers want to break off pieces of recent proposals on patent reform or cybersecurity, more limited efforts might have a chance of passing, added Charlie Greenwald, vice president of communications at TechAmerica, a tech trade group. In patent reform, an effort to end the transfer of fees from the U.S. Patent and Trademark Office to the general fund, or a proposal to revamp the fee structure, might have more traction than comprehensive patent reform, he said.

"The challenge for patent reform has never been amongst political parties but rather amongst large industries central to the U.S. economy, not least of which is technology," said Greenwald, explaining the difficulty of patent reform moving through Congress.

See Computer World, "Congress may be able to tackle tech issues in 2011" (link)

Monday, January 10, 2011

2010 Sees Record Jump for Patents Issued in the USPTO (and IBM Received Almost 6,000 of Them)

While the number of patents issued in 2009 was off from previous years, a recently-published report from IFI Claims Patent Services suggests that 2010 made up for the difference, and then some.  In fact, the USPTO issued an all-time high of 219,614 utility patents in 2010, up 31 percent from 2009, which would be the most significant annual increase on record.

As usual, IBM continues to lead the pack with a whopping 5,896 patents, up 20% from 4,914 in 2009.  Samsung came in second with 4,551 patent (+26%) Microsoft is third with 3,094 (+6.5%).  All of the companies but one in the Top 50 are up over the previous year, most shattering records and many posting double-digit percentage gains.

Big gainers in 2010 include:

Apple, +94%
Qualcomm, +84%
NEC, +74%
SAP, +70
GM Global Technology, +68%
Hynix Semiconductor, +65%
Silverbrook Research, +58%
3M Innovative Properties, +53%
Toyota, +50%
Brother, +45%
Hon Hai Precision Industry, +44%
LG Electronics, +40%
 US companies also reclaimed the lead on the total number of U.S. patent granted after losing out to foreign companies the previous 2 years.  In 2010, U.S. companies obtained 50.3% of granted patents, compared with 49% in 2009.

High-tech patents also dominated areas with the heaviest new patenting activity:
Multiplex Communications (US class 370) -- 3.3% of total
Solid-State Devices and Transistors (US class 257) -- 3.1%
Semiconductors (US class 438) -- 2.7%
Drug Compositions (US class 514) -- 2.1% 
Data Processing and File Management (US class 707) -- 2%
Computers and Processing Systems (US class 709) -- 2%
Biotechnology (US classes 435 and 530) -- 2%

The top-50 patent assignees for 2010:

RANK COMPANY 2010 Patents
1 International Business Machines Corp 5896
2 Samsung Electronics Co Ltd (Korea) 4551
3 Microsoft Corp 3094
4 Canon K K (Japan) 2552
5 Panasonic Corp (Japan) 2482
6 Toshiba Corp (Japan) 2246
7 Sony Corp (Japan) 2150
8 Intel Corp 1653
9 LG Electronics Inc (Korea) 1490
10 Hewlett-Packard Development Co L P 1480
11 Hitachi Ltd (Japan) 1460
12 Seiko Epson Corp (Japan) 1443
13 Hon Hai Precision Industry Co Ltd (Taiwan) 1438
14 Fujitsu Ltd (Japan) 1296
15 General Electric Co 1225
16 Ricoh Co Ltd (Japan) 1200
17 Cisco Technology Inc 1115
18 Honda Motor Co Ltd (Japan) 1050
19 Fujifilm Corp (Japan) 1041
20 Hynix Semiconductor Inc (Japan) 973
21 Broadcom Corp 958
22 GM Global Technology Operations Inc 942
23 Micron Technology Inc 917
24 Siemens AG (Germany) 873
25 Xerox Corp 858
26 Denso Corp (Japan) 853
27 Texas Instruments Inc 829
28 Honeywell International Inc 824
29 Sharp K K (Japan) 818
30 Toyota Jidosha K K (Japan) 802
31 Infineon Technologies AG (Germany) 774
32 Brother Kogyo K K (Germany) 771
33 Nokia AB Oy (Finland) 760
34 Silverbrook Research Pty Ltd (Australia) 752
35 LG Display Co Ltd (Korea) 738
36 Semiconductor Energy Laboratory Co Ltd (Japan) 734
37 Mitsubishi Denki K K (Japan) 700
38 Koninklijke Philips Electronics N V (Netherlands) 685
39 NEC Corp (Japan) 680
40 Boeing Co 662
41 Qualcomm Inc 657
42 SAP AG (Germany) 649
Oracle America Inc/Sun Microsystems Inc*
44 Bosch, Robert GmbH (Germany) 593
45 Fuji Xerox Co Ltd (Japan) 574
46 Apple Inc 563
47 Du Pont de Nemours, E I & Co 509
48 Sanyo Electric Co Ltd (Japan) 504
49 3M Innovative Properties Co 496
50 Freescale Semiconductor Inc 494

For more information, see "IFI CLAIMS Announces Top Global Companies Ranked By 2010 U.S. Patents" (link).

IFI also offers a "Patent Intelligence and Technology Report" containing further details.  The data may be accessed under a free trial period - for more information, click here (link)

Thursday, January 06, 2011

Thursday Shorts

CHINA PUBLISHES AMBITIONS "NATIONAL PATENT STRATEGY" FOR NEXT DECADE:  If you thought China's ascendance in the patent world was impressive over the last ten years, wait 'till you see the next ten, according to a recently published government document.  In 2009, China received about 300K applications for utility patents (the USPTO received about 480K applications in the same time).  The Chinese government now wants to blow that number up to 1 million by 2015.  During the same time, China intends to roughly double its number of patent examiners, to 9,000 (the USPTO has about 6.3K examiners).  After viewing the 5 and 10 year numbers, Director Kappos reportedly referred to the targets as “mind-blowing numbers.”

To lift its patent count, China has introduced an array of incentives including cash bonuses, better housing for individual filers and tax breaks for companies that are prolific patent producers.   Even at its current pace, China is expected to overtake US patent filings by 2012.

See NYT, "When Innovation, Too, Is Made in China" (link)

See also

IAM Blog, "China's national patent strategy poses challenges for policy makers and businesses alike" (link)

The Intangible Economy, "China's new patent strategy" (link)

JAPAN LOOKING TO SLASH PATENT FEES IN HALF: The Ministry of Economy, Trade and Industry plans to cut the corporate tax rate for foreign firms as part of measures to attract more business. The METI is also studying allowing individuals to defer payment of income taxes on equity warrants issued by overseas parent companies as well as cutting patent-related fees by half (link).

USPTO FUNDING ISSUES CONTINUE:  At the end of 2010, a temporary funding bill was approved keeping the government running through March 4 2011 at 2010 funding levels.  The problem is that the temporary bill does not take into account the PTO's 15% hike on fees and the agency's ability to have full access to its fees.  The PTO asked for $2.322 billion for 2011 (up from $2.016B in 2010), but will have to wait until April to receive further funding.  The IPO has estimated that this glitch will likely end up costing the USPTO $200M.  For more, see here (link).

Wednesday, January 05, 2011

CAFC Nixes 25% "Rule of Thumb" Application For Estimating Patent Damages

Uniloc USA, Inc. v. Microsoft Corp., No. 2010-1035 (Fed. Cir., January 4, 2011)

35 U.S.C. §284 provides that on finding infringement, damages shall "in no event [be] less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court." In litigation, a reasonable royalty is often determined on the basis of a hypothetical negotiation, occurring between the parties at the time that infringement began.

The 25 percent rule of thumb is a tool that has been widely used to approximate the reasonable royalty rate that the manufacturer of a patented product would be willing to offer to pay to the patentee during a hypothetical negotiation. In a nutshell, the application of the rule works like this:

  1. Estimate the infringer's (licensee's) expected profits for the product during the infringing period,
  2. divide the expected profits by the expected net sales over that period to arrive at a profit rate (e.g., 16%),
  3. multiply the profit rate (16%) by 25% to arrive at a running royalty rate (16% X 25% = 4%), and
  4. apply the royalty rate to the infringer's net sales to get the royalty payment.
The rule is based on the assumption that the infringer/licensee should retain a majority (i.e., 75%) of the profits, because it has undertaken substantial development, operational and commercialization risks.

According to its proponents, the veracity of the 25 percent rule has been "confirmed by a careful examination of years of licensing and profit data, across companies and industries."  Earlier empirical studies concluded that, across all industries, the median royalty rate was 22.6% and that the data supported the use of the 25% rule "as a tool of analysis."  A survey of licensing organizations in 1997 found that 25% of them used "the 25% rule" as a starting point in negotiations.

In the case of Uniloc, Microsoft was found to infringe Uniloc's patent directed to software "product key" technology that helped prevent "casual copying" of software products.  The jury awarded Uniloc $388M in damages.  The damage award was based on the testimony of Uniloc’s expert, Dr. Gemini.  Gemini opined that the damage calculation was based on the value of a product key ($10) multiplied by 25% of the value of the product (Windows XP, Microsoft Word), resulting in a baseline royalty rate of $2.50 per license issued.

During litigation, Microsoft challenged the 25% rule and attempted to exclude Gemini’s testimony. The district court noted that "the concept of a ‘rule of thumb’ is perplexing in an area of the law where reliability and precision are deemed paramount," but rejected Microsoft’s position because the rule has been widely accepted.

On appeal, the Federal Circuit dismissed the 25% rule outright:
The admissibility of the bare 25 percent rule has never been squarely presented to this court. Nevertheless, this court has passively tolerated its use where its acceptability has not been the focus of the case, or where the parties disputed only the percentage to be applied (i.e. one-quarter to one-third), but agreed as to the rule’s appropriateness.  Lower courts have invariably admitted evidence based on the 25% rule, largely in reliance on its widespread acceptance or because its admissibility was uncontested. 

This court now holds as a matter of Federal Circuit law that the 25 percent rule of thumb is a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation. Evidence relying on the 25 percent rule of thumb is thus inadmissible under Daubert and the Federal Rules of Evidence, because it fails to tie a reasonable royalty base to the facts of the case at issue.
The 25 percent rule of thumb as an abstract and largely theoretical construct fails to satisfy this fundamental requirement. The rule does not say anything about a particular hypothetical negotiation or reasonable royalty involving any particular technology, industry, or party. Relying on the 25 percent rule of thumb in a reasonable royalty calculation is far more unreliable and irrelevant than reliance on parties’ unrelated licenses, which we rejected in ResQNet and Lucent Technologies.. . . Lacking even these minimal connections, the 25 percent rule of thumb would predict that the same 25%/75% royalty split would begin royalty discussions between, for example, (a) TinyCo and IBM over a strong patent portfolio of twelve patents covering various aspects of a pioneering hard drive, and (b) Kodak and Fuji over a single patent to a tiny improvement in a specialty film emulsion.

It is of no moment that the 25 percent rule of thumb is offered merely as a starting point to which the Georgia-Pacific factors are then applied to bring the rate up or down. Beginning from a fundamentally flawed premise and adjusting it based on legitimate considerations specific flawed conclusion. 

In addition to challenging the 25% rule, Microsoft challenged the calculation of damages using the entire market value of Office and Windows and caomparing the calculated royalty to the total revenue Microsoft earned through the accused products.  Microsoft argued that Uniloc’s use of the entire market value rule was improper because it was undisputed that Product Activation did not create the basis for customer demand or substantially create the value of the component parts. Microsoft also argued that Gemini’s testimony tainted the jury’s damages deliberations.

The court agreed with Microsoft:

The Supreme Court and this court’s precedents do not allow consideration of the entire market value of accused products for minor patent improvements simply by asserting a low enough royalty rate . . . This case provides a good example of the danger of admitting consideration of the entire market value of the accused where the patented component does not create the basis for customer demand. As the district court aptly noted, "[t]he $19 billion cat was never put back into the bag even by Microsoft’s cross-examination of Mr. Gemini and re-direct of Mr. Napper, and in spite of a final instruction that the jury may not award damages based on Microsoft’s entire revenue from all the accused products in the case." . . . This is unsurprising. The disclosure that a company has made $19 billion dollars in revenue from an infringing product cannot help but skew the damages horizon for the jury, regardless of the contribution of the patented component to this revenue.
Read/download a copy of the opinion here (link)

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