The Ongoing Royalty in Patent Infringement Cases

Judge Davis recently ruled on ongoing royalties in patent infringement in VirnetX Inc., et al. v. Apple Inc., Case No. 6:13-CV-211. After a jury found infringement and awarded $368 million in past damages, Judge Davis denied VirnetX’s motion for injunctive relief (a decision that is currently being appealed). Judge Davis then decided that VirnetX was entitled to ongoing damages in the form of a 0.98% royalty. The royalty included 0.65% in damages and 0.33% in enhanced damages. Judge Davis’s decision relied on several factors: the patents were now determined to be valid; the ongoing infringement would be willful; and after the verdict, VirnetX licensed its patents to a third party at a substantially higher rate than pre-verdict licenses. Judge Davis also considered Apple’s changing arguments during trial and during the injunction hearing.

Judge Davis’s ruling is a clear indication that, at least in the Eastern District of Texas, post-verdict infringement should be considered willful and subject to enhanced damages.

Source: http://comparativepatentremedies.blogspot.com/2014/03/two-interesting-recent-us-cases-on.html

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