Regarding The Rare Remittitur In Patent Litigation

Each individual so typically, I read a final decision involving a uncommon consequence in a patent scenario. These choices supply a welcome respite from the standard parade of declare building and obviousness discussions just one normally encounters in reviewing judicial choices arising out of patent disputes. Thinking about that the too much to handle the greater part of patent instances settle, it is somewhat uncommon, for case in point, to face a reasoned impression on damages in a patent scenario. Which is a bit of a shame, if only simply because damages is an appealing subject, and shoppers associated in patent disputes ordinarily have to weigh the advantage of going through the litigation approach with the value or opportunity advantage they may incur or obtain from the scenario. A steadier stream of damages viewpoints could only support to deliver further clarity to the typically opaque deliberative approach shoppers and their counsel on each sides of a dispute will have to go through concerning damages.

As rare as the sighting of a damages impression in a patent scenario is, however, it is even a lot more uncommon to see an impression weighing the deserves of that fantastic exercising of judicial intervention acknowledged as remittitur. Far more than just a Wheel of Fortune final puzzle-worthy legal term, remittitur compels that the demo decide  consider the damages proof introduced prior to the jury — whilst weighing that proof from the reasonableness of the jury’s verdict. Put another way, the demo decide will have to decide that the jury was at the very least a very little way too unfastened with the shedding party’s cash, and then offer a compromise sum for resolving the dispute dependent on the proof presented at demo. Or offer the loser a new demo on damages. In brief, remittitur choices current the reader with a heady blend of judicial intervention, a willingness to accept that the jury went overboard, and a stark final decision for the successful social gathering as to whether or not to acknowledge the judge’s new damages sum or roll the dice with a new jury.

They may possibly be appealing, and uncommon, but are remittitur choices seriously worthy of researching for patent attorneys? In my see, of course, simply because they supply as fantastic a glimpse as we will at any time get into how demo judges see damages difficulties in patent instances. Moreover, they support us see how successful and shedding sides in patent instances worth patent instances publish-demo. Let’s just take a glance at a modern remittitur final decision as our case in point. In an April 10, 2018, impression, Judge John A. Kronstadt of the Central District of California granted remittitur in a long-managing patent dispute (the scenario was filed in 2013) about a strategy of generating chlorine dioxide using a catalyst referred to as sodium molybdate. (CH2O, Inc. v. Meras Engineering, Inc. et al., Situation No. LA CV13-08418 JAK). While the technological innovation may possibly be of most interest to the chemical engineers looking at this column, the managing of the damages difficulties in the scenario ought to be of interest to any IP attorney.

Of principal interest is the court’s recognition in an before publish-demo final decision that the jury’s $12.5 million verdict was excessive. As a consequence of that finding, the courtroom ordered supplemental briefing on whether or not remittitur was achievable dependent on the proof adduced at demo. With the advantage of that briefing, the courtroom not too long ago made a decision that remittitur was in truth correct, assuming plaintiff was eager to acknowledge the remittitur sum relatively than consider for a new demo on damages. Other than for presenting a fantastic summary of remittitur legislation, the impression is appealing for its proper concentration on properly apportioning the damages dependent on the precise use of the patented technological innovation. Many patent litigators can vouch for the difficulty and uncertainty bordering apportionment in patent instances, which at the very least partly accounts for the desire for nicely-compensated damages specialists in approximately each individual patent scenario.

But the emphasize of the impression is the reasoned analysis of the shedding defendants’ request for remittitur. That analysis needed the courtroom to evaluate the demo testimony and get there at a workable apportionment figure to apply to the jury’s verdict. To that finish, defendants proposed a 10 p.c apportionment figure that would cut down the verdict from $12.5 million to $1.25 million. In distinction, the plaintiff unsurprisingly came up with a larger apportionment figure, even even though each sides dependent their calculations on the exact simulation testing. Far more importantly, the plaintiff sought to use its damages desire at demo, relatively than the jury verdict, as the basis for damages. Less than their calculation, plaintiff’s remittitur desire ending up closer to $6 million. Rather significant distribute with the defendants’ proffered sum, but also a nice low cost off the jury award.

Ultimately, Judge Kronstadt acknowledged a very little bit of each and every side’s analysis and proposed a remittitur sum of $3.5 million. While that sum fit nicely between the distribute of publish-demo damages figures the functions presented, it is important that we accept the powerful sum of operate needed of each the litigants and the courtroom to arrive up with that figure. In brief, it was considerable. So what’s the significant takeaway from this, and other remittitur choices in patent instances? At a easy level, they offer evidence of the complexity of damages difficulties, and the extensive sum of operate each and every facet demands to undertake to show their scenario. At the exact time, the point that from time to time a lot of the operate demands to get accomplished publish-demo also reinforces how appreciative we ought to all be when a jury gets items suitable. When it arrives to damages, from time to time the uncommon benefits support us respect the unexceptional kinds.

Remember to experience cost-free to send responses or inquiries to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic ideas or ideas are most welcome.


Gaston Kroub life in Brooklyn and is a founding spouse of Kroub, Silbersher & Kolmykov PLLC, an intellectual residence litigation boutique, and Markman Advisors LLC, a major consultancy on patent difficulties for the financial commitment community. Gaston’s follow focuses on intellectual residence litigation and relevant counseling, with a robust concentration on patent matters. You can reach him at gkroub@kskiplaw.com or comply with him on Twitter: @gkroub.

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