"excluded Rex's damages expert Douglas Kidder from testifying about the key comparable license in the case-a $10 million settlement agreement between Rex and Covidien that covered not only the '650 patent at issue, but also a related patent that had been the subject of a lawsuit (the '892 patent), eight other U.S. patents, seven U.S. patent applications, and nineteen foreign patents or applications. The district court found that Kidder had failed to adequately apportion the license payment among all these patents, rendering his methodology unreliable."
"Nominal damages are proper - The Patent Act sets a "reasonable royalty" damages floor, but only if there is an evidentiary basis. Comparable-license apportionment is mandatory - when a comparable license covers more than simply the patent at issue, additional evidence must be presented to the jury to explain how to apportion the license value between the patent at issue in the case, and the other rights licensed."
The Federal Circuit reversed a $10 million jury damages award and reduced damages to $1 nominal. The district court excluded Rex’s damages expert for failing to apportion a $10 million prior license that covered multiple patents and applications, finding his methodology unreliable. No alternative expert testimony was presented at trial; the jury heard the prior license and testimony from Rex’s president who negotiated it. The court held that nominal damages are proper when no evidentiary basis supports a reasonable royalty, and that apportionment evidence is mandatory when a comparable license covers more than the asserted patent.
Read at Patently-O
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