• A New Paradigm for Risk Management in Increasingly Intangible Economies

    The business world has fundamentally changed, but most business people seem not to have noticed. Intangible assets and investments are increasingly dominating the leading economies. The world’s largest retailer holds no inventory; the world’s largest taxi service owns no cars; and the world’s largest hotel chain has no rooms. Property, plant, and equipment are no longer a company’s most vital assets. Intangible assets are swallowing the collective balance sheets of the strongest and most…

    Continue Reading ...
  • Apple is Afraid of Inventors, Not Patent Trolls

    Apple made headlines with its recent decision to close its stores in Frisco and my home town of Plano, Texas. The rumor is that Apple was afraid of the dreaded “patent troll.” However, Apple is not afraid of patent trolls. They are afraid of inventors. Whenever you hear the term patent troll, think of inventors. Inventors like my friend Bob Short, who solved an important technical problem in 1998 with his invention—a protocol that encrypts real-time audio and video transmissions. Apple wanted…

    Continue Reading ...
  • Conference on Enforcing Patents Smoothly: From Automatic Injunctions to Proportionate Remedies

    This is just a reminder, for any readers in the vicinity of southern Germany, that tomorrow the Institute of Law and Technology at Friedrich-Alexander-Universität Erlangen-Nürnberg will be hosting a conference titled “Enforcing Patents Smoothly: From Automatic Injunctions to Proportionate Remedies.” I will be speaking on the economics of injunctions in patent law.  Here is a link to the conference flyer, and below is the program in full.  It should be quite interesting.  I think the “grace period” referred to below is the Aufbrauchfrist, which is something I’ve blogged about a few times (see, most recently, here) and am eager to learn more about. 


    9.00 a.m. Registration and Coffee
    9.30 a.m. Welcome and Introduction
    Balancing interests via remedies
    (Prof. Dr. Franz Hofmann, LL.M., Friedrich-Alexander-Universität Erlangen-Nürnberg)
    Injunctions in Patent Law – The Fundamentals
    10.00 a.m. Injunctions in European Patent Law
    (Prof. Dr. Lea Tochtermann, Universität Mannheim)
    10.45 a.m. Discussion
    11.00 a.m. Economics of Injunctions in Patent Law
    (Prof. Thomas F. Cotter, University of Minnesota Law School)
    11.30 a.m. Discussion
    11.45 a.m. Coffee
    Case Studies: “Tailored” Injunctions
    12.15 p.m. The “grace period” in German Unfair
    Competition Law, Copyright and Trademark Law
    (Prof. Dr. Jan Bernd Nordemann, LL.M., Attorney at law, Berlin)
    12.45 p.m. The “grace period” in German Patent Law
    (Prof. Dr. Christian Osterrieth, Attorney at law, Düsseldorf)
    1.15 p.m. Discussion
    1.30 p.m. Lunch
    2.30 p.m. “FRAND-Injunctions” in Europe
    (Prof. Dr. Peter Picht, LL.M., Universität Zürich)

    3.00 p.m. Discussion
    Case Studies: Compensation in Lieu of Injunctions
    3.15 p.m. The English case law
    (Daniel Alexander QC, 8 New Square London)

    3.45 p.m. The US case law after eBay v. MercExchange
    (Prof. Dr. John M. Golden, University of Texas at Austin)
    4.15 p.m. Discussion
    4.30 p.m. Coffee
    Conclusions and Key Take-Aways
    5.00 p.m. Identifying underlying legal principles
    (Dr. Martin Stierle, LL.M., Ludwig-Maximilians-Universität München)
    5.30 p.m. Practical implications.
    The judge’s perspective
    (Dr. Peter Tochtermann, Presiding Judge, Mannheim Regional
    6.00 p.m. Discussion
    6.15 p.m. Panel Discussion
    The good, the bad, and the ugly – Injunctions in Patent Law and alternatives
    Patrick Schmitz, LL.M., Senior Legal Counsel, Deutsche Telekom
    Dr. Clemens-August Heusch, LL.M., Head of European Litigation, Nokia
    Dr. Peter Tochtermann, Presiding Judge, Mannheim Regional Court
    (Chair: Dr. Ralf Uhrich, LL.M., Patent Litigation Counsel, Google)
    7.00 p.m. Reception
    Continue Reading ...
  • Special Interests are Watching Academic Tech Transfer

    The original motivation for the Bayh-Dole Act was to encourage the commercialization of academic innovation so that new technologies could be available for the benefit of all. Yet today, I feel compelled to call attention to a compliance landscape that is significantly different than that of the past four decades—one that could have dire consequences for institutions if they choose to be complacent. Not only do sponsoring agencies have an interest in how tech transfer complies with Bayh-Dole…

    Continue Reading ...
  • Consumer Technology Association Preaches Patent Troll Fairy Tale to Crowd During Fireside Chat with Iancu at SXSW

    USPTO Director Andrei Iancu participated in a fireside chat, titled “The Crossroads of Technology and Innovation,” hosted by the Consumer Technology Association (CTA) at its sixth annual Innovation Policy Day on Tuesday, March 12 at SXSW in Austin, Texas. Sitting with Director Iancu was host Michael Hayes, Sr. Manager of Government Affairs for the CTA. The chat was quite short and briefly touched on topics such as celebrating the 10 millionth-issued patent, the preparedness of the patent system…

    Continue Reading ...
  • Will IPlytics disrupt patent analytics?

    From eu-startups on IPlytics:

    It’s important for companies in every industry to be informed at an early stage about relevant or even dangerous patents. Not just to monitor competition, but also to understand who is investing in the next technology trend that will change or even disrupt future markets. While most patent information is freely available online, it has become impossible to systematically analyse and understand more than 500,000 new patent applications every month, over 400,000 new research articles, or over 40,000 newly founded startups.

    “We do not want to replace the patent attorney, but intelligently support the often manual analysis,” continued Pohlmann. “Our customers have domain knowledge and understand the content of a patent, but the number of patent applications has become too large to read everything. The learning algorithm of the IPlytics Platform uses users’ input to evaluate patents, cluster them, and link them to other documents such as research articles, technology standards or company profiles.”

    Increased connectivity will result in more and more patented solutions being used in smartphones, computers, cars, machines, meters or even medical devices, as strategically placed patents can block entire industries. And recent patent disputes such as Broadcom’s billion-dollar lawsuit against Volkswagen demonstrate the sums involved.

    “With its agnostic analysis approach, IPlytics has been able to link patent data to a variety of other data sources and automatically generate valuable new insights,” said Hannes Schill, Partner at eCAPITAL. “In particular, for so-called standard essential patents, which serve as the basis for new standards such as e.g. 5G or WiFi, IPlytics has become the most used software in the market.”

    link: https://www.eu-startups.com/2019/03/berlin-based-market-intelligence-platform-iplytics-raises-millions-to-disrupt-patent-analytics/

    Continue Reading ...
  • Complexities in intellectual property for individual inventors: DeVona v Zeitels

    At jury trial, the inventorship issue went one way; the contract issue the other way:

    The parties went to trial on the patent inventorship
    claim and partnership claims. The jury found against Mr.
    DeVona on patent inventorship, rejecting his theory that
    he meaningfully contributed to the glottiscope design embodied by U.S. Patent No. 6,955,645.
    Thus, Dr. Zeitels remains the only inventor listed on the patent. However, the
    jury found in Mr. DeVona’s favor on the partnership
    claims. For breach of fiduciary duty, the jury awarded
    $395,907. For breach of the partnership agreement, the
    jury awarded Mr. DeVona $352,007

    But JNOV went against DeVona, and the CAFC affirmed.

    Continue Reading ...
  • SRI patents survive Cisco challenge at the CAFC, but damages, attorneys’ fees issues remain

    The outcome was mixed, with patent validity sustained (good for patentee SRI), but damages issues in need of review:

    We affirm the district court’s denial of summary judgment of ineligibility,
    adopt its construction of “network
    traffic data,” and affirm its summary judgment of no anticipation.
    We vacate and remand the district court’s denial
    of judgment as a matter of law of no willful infringement,
    and therefore vacate the district court’s enhancement of
    damages. We also vacate the district court’s award of attorneys’ fees and remand for recalculation.
    Finally, we affirm the district court’s award of ongoing royalties on postverdict
    sales of products that were actually found to infringe or are not colorably different.
    Accordingly, we affirm-in-part, vacate-in-part, and remand for further proceedings consistent with this opinion.

    The Berkheimer case is cited:

    We review de novo whether a claim is drawn to patenteligible subject matter.
    Berkheimer v. HP Inc., 881 F.3d
    1360, 1365 (Fed. Cir. 2018) (citing Intellectual Ventures I
    LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1338
    (Fed. Cir. 2017)). Section 101 defines patent-eligible subject matter
    as “any new and useful process, machine, manufacture, or composition of matter, or any new and useful
    improvement thereof.” 35 U.S.C. § 101. Laws of nature,
    natural phenomena, and abstract ideas, however, are not
    patentable. See Mayo Collaborative Servs. v. Prometheus
    Labs., Inc., 566 U.S. 66, 70–71 (2012) (citing Diamond v.
    Diehr, 450 U.S. 175, 185 (1981)).
    To determine whether a patent claims ineligible subject matter, the Supreme Court has established a two-step
    framework. First, we must determine whether the claims
    at issue are directed to a patent-ineligible concept such as
    an abstract idea. Alice Corp. v. CLS Bank Int’l, 573 U.S.
    208, 217 (2014). Second, if the claims are directed to an
    abstract idea, we must “consider the elements of each claim
    both individually and ‘as an ordered combination’ to determine whether
    the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Id.
    (quoting Mayo, 566 U.S. at 79). To transform an abstract
    idea into a patent-eligible application, the claims must do
    “more than simply stat[e] the abstract idea while adding
    the words ‘apply it.’” Id. at 221 (quoting Mayo, 566 U.S.
    at 72 (internal alterations omitted)).

    We resolve the eligibility issue at Alice step one and
    conclude that claim 1 is not directed to an abstract idea.

    See Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337
    (Fed. Cir. 2016). The district court concluded that the
    claims are more complex than merely reciting the performance of a
    known business practice on the Internet and are
    better understood as being necessarily rooted in computer
    technology in order to solve a specific problem in the realm
    of computer networks.


    Contrary to Cisco’s assertion, the claims are not directed to just analyzing data
    from multiple sources to detect suspicious activity. Instead, the claims are directed to
    an improvement in computer network technology. Indeed,
    representative claim 1 recites using network monitors to
    detect suspicious network activity based on analysis of network traffic data,
    generating reports of that suspicious activity, and integrating those reports using hierarchical
    monitors. ’615 patent col. 15 ll. 2–21. The “focus of the
    claims is on the specific asserted improvement in computer
    capabilities”—that is, providing a network defense system
    that monitors network traffic in real-time to automatically
    detect large-scale attacks. Enfish, 822 F.3d at 1335–36.

    As to anticipation

    We also hold that the district court did not err in granting summary judgment
    that the asserted claims are not anticipated by SRI’s own EMERALD 1997 reference. We
    review the district court’s summary judgment of no anticipation under regional circuit law.
    See MAG Aerospace Indus., Inc. v. B/E Aerospace, Inc., 816 F.3d 1374, 1376
    (Fed. Cir. 2016). The Third Circuit reviews a grant of summary judgment de novo, applying the same standard as the
    district court. See Gonzalez v. Sec’y of Dep’t of Homeland
    Sec., 678 F.3d 254, 257 (3d Cir. 2012). Summary judgment
    is appropriate when, drawing all justifiable inferences in
    the nonmovant’s favor, there exists no genuine issue of material fact and the movant
    is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty
    Lobby, Inc., 477 U.S. 242, 255 (1986). Anticipation requires that a single prior art reference disclose each and
    every limitation of the claimed invention, either expressly
    or inherently. See Verdegaal Bros. v. Union Oil Co. of Cal.,
    814 F.2d 628, 631 (Fed. Cir. 1987).

    Here, Cisco was treading upon the ground of PREVIOUS arguments

    EMERALD 1997 discloses a tool for tracking malicious
    activity across large networks. The question before us is
    whether the district court erred in concluding on summary
    judgment that EMERALD 1997 does not disclose detection
    of any of the network traffic data categories listed in
    claim 1 of the ’203 and ’615 patents. The Patent Office
    considered EMERALD 1997 during the original examination of the ’615 patent,
    and the patentability of the claims
    over the reference was confirmed in multiple reexamination and litigation proceedings.
    Indeed, during reexamination, the Patent Office accepted SRI’s argument that the
    claim limitation requires detecting suspicious activity
    based on “direct examination” of network packets to distinguish EMERALD 1997.
    J.A. 26402 (“[T]he closest prior art
    of record, Emerald 1997, fails to teach direct examination
    of packet data.”); J.A. 27101 (same).

    AND Cisco’s experts did not help:

    On this record, we conclude that summary judgment
    was appropriate. EMERALD 1997 does not expressly disclose directly
    examining network packets as required by
    the claims—especially not to obtain data about network
    connection requests. Nor does Cisco’s expert testimony create a genuine issue of fact on this issue.
    Rather, we agree
    with the district court that Cisco’s expert’s testimony is
    both inconsistent
    and “based on [] multiple layers of supposition.” Summary Judgment Op., 179 F. Supp. 3d at 358.
    Because the evidence does not support express or inherent
    disclosure of direct examination of packet data, we conclude that the district court did not err in holding that
    there was no genuine issue of fact regarding whether
    EMERALD 1997 disclosed analyzing the specific enumerated types of network traffic data recited in the claims.

    Cisco did win on willful infringement

    Cisco also appeals the district court’s denial of JMOL
    that it did not willfully infringe the asserted patents because
    the jury’s willfulness finding is not supported by substantial evidence.
    We agree that the jury’s finding that
    Cisco willfully infringed the patents-in-suit prior to receiving notice
    thereof is not supported by substantial evidence
    and therefore vacate and remand.

    No need for engineers to read patents??

    Even accepting this evidence as true and weighing all
    inferences in SRI’s favor, we conclude that the record is insufficient
    to establish that Cisco’s conduct rose to the level
    of wanton, malicious, and bad-faith behavior required for
    willful infringement. First, it is undisputed that the Cisco
    employees who did not read the patents-in-suit until their
    depositions were engineers without legal training. Given
    Cisco’s size and resources, it was unremarkable that the
    engineers—as opposed to Cisco’s in-house or outside counsel—
    did not analyze the patents-in-suit themselves. The
    other rationale offered by the district court—that Cisco designed
    the products and services in an infringing manner
    and that Cisco instructed its customers to use the products
    and services in an infringing manner—is nothing more
    than proof that Cisco directly infringed and induced others
    to infringe the patents-in-suit.

    Note footnote 6:

    We recognize that, ideally, it should not fall to the
    district court to determine when, if ever, willful infringement
    began through the mechanism of JMOL. Rather, the
    question of when willful infringement began is a fact issue
    that would have been best presented to the jury in a special
    verdict form with appropriate jury instructions. Better yet,
    perhaps SRI could have recognized the shortcomings in its
    case and presented a more limited case of willful infringement from 2012 onwards.
    Or perhaps Cisco could have
    filed a motion for summary judgment of no willful infringement prior to May 8, 2012.

    Judge Lourie dissented on the 101 issue

    I respectfully dissent from the majority’s decision upholding the eligibility of the claims. In my view, they are
    clearly abstract. In fact, they differ very little from the
    claims in Electric Power Group, LLC v. Alstom S.A., 830
    F.3d 1350, 1355 (Fed. Cir. 2016), where we found the
    claims to be abstract.


    Thus, I would find the claims to be directed to an abstract idea at Alice step one, without an inventive concept
    at step two, and reverse the district court’s finding of eligibility. Because I would find the claims at issue to be ineligible, I would not reach the remaining issues in the case.

    Continue Reading ...
  • Senate IP Subcommittee Hears Testimony from Iancu, Debates Hot-Button IP Issues

    On the afternoon of Wednesday, March 13, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held an oversight hearing of the U.S. Patent and Trademark Office featuring testimony from and questioning of USPTO Director Andrei Iancu. While this hearing was relatively short by Congressional standards, the Senate IP Subcommittee explored recent changes instituted during Iancu’s tenure as USPTO Director and also got into the debate on pharmaceutical patents—a topic that has been…

    Continue Reading ...
  • Genomic Sequence of Strawberry Determined

    By Kevin E. Noonan — The portion of the eukaryotic world inhabited by plants exhibits a genetic complexity not shared by members of the animal world (see, for example, “Rose Genome Reveals Its Exquisite Complexities”). The strawberry (Fragaria × ananassa) genome, recently explicated in a paper published last month in Nature Genetics, provides yet another example of this characteristic. The paper, entitled “Origin and evolution of the octoploid strawberry genome,” which was authored* by scientists from several academic institutions and genomics companies, provides a complete genomic sequence for the allo-octoploid (“2n = 8X = 56″ chromosomes) strtawberry genome, which is appreciated as…

    Continue Reading ...
  • Meet the Democrats of the 116th House IP Subcommittee

    With congress out of session this week, it is a good time to meet the members of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet, which—unlike the Senate IP Subcommittee—has not yet convened this term. While the House may be largely preoccupied with issues outside the IP realm thus far, other House committees and subcommittees have been actively debating a number of topics relevant to IP. The 116th Congress brings both new and old faces to the…

    Continue Reading ...
  • Federal Circuit Vacates Judgment of Willful Infringement, Enhanced Damages

    The decision, released earlier today, is SRI Int’l, Inc. v. Cisco Sys., Inc.  The majority opinion is by Judge Stoll, joined by Judge O’Malley.  The principal issue on appeal is whether the claims recite patentable subject matter.  Representative claim 1 of the ‘615 Patent reads:
    A computer-automated method of hierarchical event monitoring and analysis within an enterprise network comprising:
    deploying a plurality of network monitors in the enterprise network;
    detecting, by the network monitors, suspicious network activity based on analysis of network traffic data selected from one or more of the following categories: {network packet data transfer commands, network packet data transfer errors, network packet data volume, network connection requests, network connection denials, error codes included in a network packet, network connection acknowledgements, and network packets indicative of well-known network-service protocols};
    generating, by the monitors, reports of said suspicious activity; and
    automatically receiving and integrating the reports of suspicious activity, by one or more hierarchical monitors.

    The majority agrees that the claim is patent-eligible, stating (at p.9) what is arguably becoming the dispositive factor in U.S. cases involving computer-related subject matter–namely, that “the claims are directed to an improvement in computer network technology.”  Judge Lourie dissents on this issue. 
    There are some other issues as well, including anticipation and claim construction, but I’ll focus on damages.  The jury awarded damages for past infringement using a 3.5% rate on infringing products, and it also found that Cisco had willfully infringed.  The judge then doubled the damages; concluded that the case was exceptional and awarded SRI its attorneys’ fees; and awarded SRI an ongoing royalty, in lieu of an injunction, at the same (3.5%) rate as the pre-verdict damages.  The Federal Circuit vacates the willfulness finding, but affirms the finding that the case was exceptional and the ongoing royalty.
    On willfulness, the court concludes that the evidence did not permit the inference that Cisco willfully infringed during the entire time period that finding covered, and remands for further proceedings:
    In denying Cisco’s motion for JMOL on willfulness, the district court concluded that the jury’s willfulness determination was supported by two evidentiary bases. First, the court identified evidence that “key Cisco employees did not read the patents-in-suit until their depositions.” . . . Second, the court identified evidence that Cisco designed the products and services in an infringing manner and that Cisco instructed its customers to use the products and services in an infringing manner. . . . 

    On appeal, SRI identifies additional evidence that pur-portedly supports the jury’s willfulness verdict. Specifically, SRI presented evidence that Cisco expressed interest in the patented technology and met with SRI’s inventor in 2000 before developing its infringing products. . . .  Additionally, SRI submitted evidence that Cisco received a notice letter from SRI’s licensing consultant on May 8, 2012, informing Cisco of the asserted patents (a year before SRI filed the complaint). Finally, like the district court, SRI makes much of the fact that “key engineers” did not look at SRI’s patents until SRI took their depositions during this litigation. . . .

    Even accepting this evidence as true and weighing all inferences in SRI’s favor, we conclude that the record is insufficient to establish that Cisco’s conduct rose to the level of wanton, malicious, and bad-faith behavior required for willful infringement. First, it is undisputed that the Cisco employees who did not read the patents-in-suit until their depositions were engineers without legal training. Given Cisco’s size and resources, it was unremarkable that the engineers—as opposed to Cisco’s in-house or outside counsel—did not analyze the patents-in-suit themselves. The other rationale offered by the district court—that Cisco designed the products and services in an infringing manner and that Cisco instructed its customers to use the products and services in an infringing manner—is nothing more than proof that Cisco directly infringed and induced others to infringe the patents-in-suit.

    It is undisputed that Cisco did not know of SRI’s patent until May 8, 2012, when SRI sent its notice letter to Cisco. . . . It is also undisputed that this notice letter was sent years after Cisco independently developed the accused systems and first sold them in 2005 (Cisco) and 2007 (Sourcefire). As SRI admits, the patents had not issued when the parties met in May 2000. Indeed, the patent application for the parent ’203 patent was not even filed until several months after the parties met. Thus, Cisco could not have been aware of the patent application.

    While the jury heard evidence that Cisco was aware of the patents in May 2012, before filing of the lawsuit, we do not see how the record supports a willfulness finding going back to 2000. As the Supreme Court recently observed, “culpability is generally measured against the knowledge of the actor at the time of the challenged conduct.” Halo, 136 S. Ct. at 1933. Similarly, Cisco’s allegedly aggressive litigation tactics cannot support a finding of willful infringement going back to 2000, especially when the litigation did not start until 2012. Finally, Cisco’s decision not to seek an advice-of-counsel defense is legally irrelevant under 35 U.S.C. § 298.

    Viewing the record in the light most favorable to SRI, the jury’s verdict of willful infringement before May 8, 2012 is not supported by substantial evidence. Given the general verdict form, we presume the jury also found that Cisco willfully infringed after May 8, 2012. . . . We leave it to the district court to decide in the first instance whether the jury’s presumed finding of willful infringement after May 8, 2012 is supported by substantial evidence. . . .  

    Cisco also argues that the district court abused its discretion by doubling damages. Enhanced damages under § 284 are predicated on a finding of willful infringement. Because we conclude that the jury’s finding of willfulness before 2012 was not supported by substantial evidence, we do not reach the propriety of the district court’s award of enhanced damages. Instead, we vacate the award of enhanced damages and remand for further consideration along with willfulness. (pp. 18-21).

    Surprisingly, perhaps, since fees often are not awarded to the plaintiff unless the infringement was willful, the court affirms the exceptionality finding, though it remands for a recalculation:
    We see no such error in the district court’s determination that this was an exceptional case. The district court found:
    There can be no doubt from even a cursory review of the record that Cisco pursued litigation about as aggressively as the court has seen in its judicial experience. While defending a client aggressively is understandable, if not laudable, in the case at bar, Cisco crossed the line in several regards. . . .

    The district court further explained that “Cisco’s litigation strategies in the case at bar created a substantial amount of work for both SRI and the court, much of which work was needlessly repetitive or irrelevant or frivolous.” . . . Indeed, the district court inventoried Cisco’s aggressive tactics, including maintaining nineteen invalidity theories until the eve of trial but only presenting two at trial and pursuing defenses at trial that were contrary to the court’s rulings or Cisco’s internal documents. . . .  The district court concluded that all of this, in addition to the fact that the jury found that Cisco’s infringement was willful, led it to exercise its discretion pursuant to § 285 to award SRI its attorneys’ fees and costs. . . . We conclude that the district court did not abuse its discretion in so finding.

    We thus take no issue with the district court’s award of attorneys’ fees generally (including keeping the attorneys’ billing rates without adjusting them to Delaware rates). At the same time, however, the district court erred in granting all of SRI’s fees. Section 285 permits a prevailing party to recover reasonable attorneys’ fees, but not fees for hours expended by counsel that were “excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). We accordingly conclude that the district court should have reduced SRI’s total hours to eliminate clear mistakes. For example, one billing entry reads “DON’T RELEASE, CLIENT MATTER NEEDS TO BE CHANGED.” J.A. 32384. Accordingly, we remand only for removal of attorney hours clearly included by mistake and consequent recalculation of reasonable attorneys’ fees (pp. 22-23).

    Finally, the court rejects Cisco’s argument that “the district court abused its discretion in awarding the 3.5% ongoing royalty on ‘all post-verdict sales’ without considering Cisco’s design-arounds,” on the ground that Cisco didn’t raise this issue in a timely fashion below.  Nevertheless, the court concludes that “the district court has not yet determined whether products and services that were not accused (that is, changed after the jury verdict) are colorably different for purposes of ongoing royalty calculations. Such an issue could be resolved in a future proceeding” (pp. 24-25).
    Continue Reading ...