On June 22, 2018 the Supreme Court handed down a 7-2 decision in WesternGeco v. ION Geophysical upholding a patent owner’s right to recover lost profits damages for infringement under 35 USC 271(f)(2). While the Court was careful to limit its holding, the reasoning applied by the Court may have implications beyond the narrow statutory provision at issue.
Please join Douglas R. Nemec of Skadden, Arps, Slate, Meagher & Flom LLP for a presentation that will:
- Provide a detailed analysis of the WesternGeco decision;
- Explore the potential ramifications of the WesternGeco decision for patent damages more generally; and
- Examine how WesternGeco fits into the broader scheme of recent Supreme Court patent decisions, as practitioners seek signs of how the Court may handle upcoming patent cases.
2. The IP Chat Channel will be hosting a webinar next Thursday, July 26, from 2-3 p.m. Eastern Time titled What’s Next for Design Patent Damages? The DOJ Test on Trial. Here is a link, and here is the description:
For all its eye-popping size, the $533 million award that Apple won against Samsung in a design patent infringement case was seen by few as legally significant. Now that the case has settled, it is an interesting time for our expert panel — an attorney who specializes in design patents, a damages expert, and in-house counsel at an automaker — to assess the current state of damages law for design patents.
The Supreme Court in 2016 held that the relevant “article of manufacture” could be either all or part of the infringing product. One possible standard for determining the relevant “article of manufacture” for Section 289 purposes was proposed by the United States Department of Justice in an amicus brief it submitted to the Supreme Court. And that test is taking on a vigorous life of its own.
This summer, Seirus will file a brief in its appeal at the Federal Circuit after it was required by a jury last year to pay $3 million in design patent damages to Columbia. Columbia v. Seirus was the first case after Samsung v. Apple to charge a jury to use the DOJ’s test. The outcome of this case is thus eagerly anticipated.
Our panelists will discuss the Federal Circuit’s options in addressing the DOJ standard. They will also discuss:
- Other legal uncertainties left by the Supreme court, including who bears the burden of proof in the DOJ test, and whether the identity of the article of manufacture is a matter of fact to be decided by the jury
- Strategies for patent prosecution and litigation in light of uncertainty
- Certain areas, such as graphical user interfaces, where both innovators and implementers must take special care
- Rick Bero, The Bero Group
- James Dottavio, Ford Global Technologies LLC
- Elizabeth Ferrill, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP